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 Proceedings of the Seventh Annual Gilder Lehrman Center International Conference at Yale University Repairing the Past: Confronting the Legacies of Slavery, Genocide, & Caste October 27-29, 2005 Yale University New Haven, Connecticut Guilt and Accountability in the Postwar Courtroom: The Holocaust in Czortków and Buczacz, East Galicia, As Seen in West German Legal Discourse Omer Bartov, Brown University Available online at www.yale.edu/glc/justice/bartov.pdf© Do not cite without the author’s permission THE LAW In the late 1950s and 1960s a series of trials of former Nazi perpetrators took place in the Federal Republic of Germany (FRG). The best known and most influential was the Frankfurt Auschwitz Trial of 1963-65. That trial in particular helped establish in the FRG a certain view of the Holocaust, the perpetrators, and the nature of guilt and accountability in the context of a state-ordered genocide. But the Auschwitz Trial was concerned with the torture and murder of inmates in a concentration and extermination camp.1 Other trials during the same period focused on the destruction of Jewish communities in Eastern Europe, many of whose members were murdered in mass shootings in or in very close proximity to their own towns, while others were transported to extermination camps.

The perpetrators of such local killing operations were SS-men, members of various police agencies, and non-German collaborators. These men, as well as some women, often gained an intimate knowledge of the communities to which they were posted before annihilating them. They were far less constrained by a rigid system of supervision and control, and thus had much greater opportunity for personal initiative, than the personnel in the camps. They represented the “human” face of genocide: in these small and rather insulated communities contact with the people whose fate depended on the perpetrators’ sympathy, rage, kindness or cruelty was frequent, close, and occasionally ambivalent. The non-Jewish local population was another important factor in these towns: its attitude and conduct – ranging from active collaboration with the Germans to indirect profit-making from the destruction of fellow citizens, from willingness to provide shelter to the persecuted to active resistance – could be as decisive in determining the fate of the victims as was the zeal and efficiency of the Nazis. Up to half the Jewish victims of the Holocaust were murdered under such circumstances either in their own towns or following their subsequent deportation to extermination camps.2 In prosecuting former Nazis in the 1950s and 1960s, German justice had to contend not only with the industrial killing of human beings in the extermination camps, but also with the very different circumstances of eradicating local communities in German-occupied territories. For this purpose, German courts had to recreate the historical context in which these crimes were committed, often unknown to the public at the time and in many cases still quite murky today. They also had to work under the constraints of German postwar law. Following the establishment of the FRG in 1949, the German judiciary rejected the option of applying the new legal concepts of crimes against humanity and genocide to events that occurred before such terms and laws had existed. Crimes against humanity were first defined in

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the London Charter and the Nuremberg International Military Tribunal in 1945, and codified by the United Nations in 1946. The United Nations’ Genocide Convention was adopted in 1948, and subsequently ratified by most member states.3 But strong German legal opposition to trials based on ex post facto law, which denied the principle of “nulla poena sine lege” (no punishment without prior law), compelled West German courts to apply only conventional criminal law to those indicted for crimes during the Nazi period.4 The German criminal code defines a murderer as “anyone who kills a human being: from lust for killing, to satisfy his sexual drives, from covetousness or other base motives, treacherously, cruelly, or by means endangering the community or in order to facilitate or conceal another crime.”5 The focus in this definition is therefore largely on the subjective motives of the defendant. In the case of Nazi crimes, such “base” motives could rarely be attributed to defendants who participated in a genocidal state-directed undertaking and acted within the framework of military, police, or bureaucratic hierarchies apparently sanctioned by law and in accordance with directives emanating from the highest echelons of the state. Considering the specific circumstances of the Third Reich, the German Supreme Court (Bundesgerichtshof, BGH) determined that “base motives” would include racial hatred and antisemitism. Thus defendants motivated by antisemitism to kill Jews would fall under the definition of murder, whereas those who did so merely under orders would not. This naturally led Nazi defendants to deny any antisemitic motivation. It is therefore not surprising that antisemitism appears to have rarely featured among the reported motives of Nazi perpetrators. And since it is in any case notoriously difficult to determine such subjective motives if they are not attested to by the defendant, very few murder convictions were ever reached on this basis.6 3

German defendants also tried to invoke the argument of superior orders (Befehlsnotstand), which the Nuremberg Tribunal had rejected. This line of defense, however, was deemed inadmissible also by West German courts.7 Nevertheless, the need to prove subjective “base motives” for a murder conviction meant that most defendants whose cases were not entirely dismissed were eventually convicted of either manslaughter or of aiding and abetting as accomplices to murder. As of 1960 charges of manslaughter fell under the statute of limitations, whereas conviction as accomplice to murder often carried ludicrously light sentences.8 Moreover, conduct which could be shown to have constituted treachery or cruelty, and might therefore bring a murder conviction, was attributed primarily to those rare, lower-rank sadists who were neither representative of the mass of the perpetrators nor responsible for most of the killings. The ironic result of this legal logic was that while a few “excess perpetrators” (Exzeßtäter) of the lower ranks received life sentences, many of the higher ranking organizers of local mass killings were either acquitted or given very short prison terms.9 This also meant that the courts created an entirely false picture of the nature of genocide, depicting those who carried out genocidal orders as far less guilty than those who manifested sadistic traits. The implication was that the killings were the result of unauthorized actions by a few depraved individuals – quite incapable of organizing a continent-wide genocide – rather than the outcome of a well coordinated undertaking conducted by perfectly “normal” officials following the procedures of military, police, and bureaucratic organizations. Yet without these officials’ willing, and quite often enthusiastic collaboration, the mass murder of the Jews would never have attained such a devastating magnitude.10 THE SITE 4

Historians have written a great deal on the decision-making process that led to the Final Solution,11 as well as on the concentration and extermination camps,12 the regional implementation of genocide and its links to policies of ethnic cleansing and economic exploitation,13 and on the motivation of the men who carried out mass murder.14 Yet we still know very little about what happened in the thousands of communities that came under German occupation, especially in Eastern Europe and the western regions of the Soviet Union.15 Considering that much of the Holocaust actually occurred in such communities, this gap in our knowledge is quite startling. But this is not only a matter of expanding our knowledge. For even the little we already know about the manner in which genocide unfolded in the vast array of East European towns and the surrounding villages seems to shed new light on the Holocaust as an historical event. It may also help expose both similarities and differences between the mass murder of the Jews and other genocides. For these towns were in large part made up of several religious and ethnic communities, and the relations between these groups played an important role in the fate of the victims.16 Such towns also provided the social context for far more intimate and dynamic relations between perpetrators, victims, collaborators, and bystanders, not least because the status of each of these groups was often far from stable. Indeed, focusing on such communities reveals that the category of bystanders had very little meaning, that there was a surprising degree of overlap between rescuers and collaborators, and that even victims and perpetrators might reverse roles, often more than once. Finally, and most relevant to the present discussion, the study of such towns makes it possible to gain a much more intimate knowledge of the perpetrators and their relationship with the communities in which they lived, as well as with the men, women, and children they murdered. 5

The sources for such reconstructions are numerous and varied. They range from contemporary documents to testimonies, diaries, and interviews.17 Concerning the perpetrators, the records of their indictments and trials are often the most detailed and revealing. But these records expose more than the facts of the matter. For, just as important, they demonstrate the manner in which German courtrooms constructed a view of the Holocaust that differed from the convention at the time and still remains unfamiliar today: not of detached and impersonal mass extermination in the camps, but of face-to-face relations between Germans and Jews which almost always – but often after relatively lengthy acquaintance – ended up in face-to-face killing. In undertaking this sociology and psychology of genocide, West German courts strove to locate the perpetrators on the margins of German society and culture and on the extreme end of the scale of baseness. In this manner they hoped to limit the destabilizing effect on postwar Germany that might have resulted from the courts’ actual findings about the utter conventionality of many of the defendants. Location mattered a great deal also in the geographical sense. For the German occupiers and perpetrators, as well as for the German courts, the East European towns in which these massacres occurred meant very little. For the local population they were often sites of long histories and memories, rich culture and deep religious roots. The German occupiers and postwar lawyers, judges, journalists, and the public, were oblivious to all that. For them the question was: How did civilized Germans behave in such a murderous fashion? And part of the answer was that they had strayed out of a social and cultural context that would have otherwise restrained them and preserved their civility. This was also the reason that German courts found it easier to accept testimonies from witnesses whose credentials included professional training at German/European institutions of

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higher learning, even though men with similar training featured prominently among the perpetrators as well. Consequently, the courts strove to create a picture of the defendant that distanced him from the rest of German society, indeed, even from the judges themselves, and postulated that such distance – political, cultural, ethnic, or psychological – was at the root of the crime. Underlying this assumption was also the notion that the site of the crimes was essentially different; though not a camp (which was after all created by the Germans) it was a strange and far-off territory, where certain types of otherwise unacceptable behavior seemed to be legitimate. In what follows I will discuss two towns and the trials of a few perpetrators who participated in the destruction of their Jewish communities. The main focus of the larger research project I am conducting is the town of Buczacz. But since the regional outpost of the German security police (Sicherheitspolizei, or Sipo) was located at nearby Czortków, it is necessary to consider the activities of the perpetrators in both towns as well as in other sites under their control. Buczacz and Czortków are located in the Tarnopol (now Ternopil’) district of what used to be the Galician province of Austria-Hungary before 1914. Galicia became part of the eastern provinces of interwar Poland, and is now a major component of Western Ukraine. Both Buczacz and Czortków were established as private towns in the fifteenth and sixteenth centuries and came to be owned by the powerful noble Polish Potocki family. Before the annexation of Galicia by the Habsburg Empire in 1772, the towns were on the borderlands of the Polish-Lithuanian Commonwealth. They experienced numerous wars and invasions, especially during the seventeenth century, when the area was overrun by Cossacks, Tatars, and Ottoman armies. During World War I the towns were occupied for part of the time by the Russian army. Coming under the rule of the short-lived Ukrainian republic in the aftermath of the war, Buczacz and

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Czortków were again sites of violence during the Russo-Polish War. In 1921 both towns became part of the newly-established Polish state.18 Buczacz is known to have had a Jewish population since the early sixteenth century. During the nineteenth century the Jewish community greatly expanded, so that by 1880 it constituted the vast majority of the population, almost 7,000 Jews out of a total of just under 10,000 inhabitants. Despite a relative decline due to emigration in the last decades of the century and the years leading to World War I, in 1914 Buczacz had a population of 3,500 Poles, 2,000 Ukrainians, and 7,500 Jews. The demographics in Czortków were similar, so that in 1910 there were just under 3,000 Jews in a town with a total population of slightly over 5,000 people. Czortków was one of the most important centers of Hassidism in the region. By the latter parts of the nineteenth century it also saw a great expansion in secular cultural activities, including socialism and Zionism, and a growing interest in learning both Polish and Hebrew. This mix of assimilation into Polish culture and a growing interest in Zionism and the emergence of Modern Hebrew was even more prominent in pre-World War I Buczacz, where Hassidism was much weaker. Buczacz was the birth place of such major figures as the writer and Nobel Prize laureate Shmuel Yosef Agnon, the historian and subsequent founder of the Warsaw Ghetto’s Oneg Shabbat archive Emanuel Ringelblum, and the “Nazi hunter” Simon Wiesenthal. These towns were also sites of increasing nationalist mobilization and intellectual activity by the Ukrainians, who constituted the majority of the population in the rural areas, and by the Poles, who maintained cultural and political dominance despite being a minority in the region. In September 1939 the entire region came under Soviet rule as Poland was divided between the USSR and Nazi Germany. The Soviets deported large numbers of citizens: nationalist Poles and Ukrainians as well as bourgeois and Zionist Jews.19 As war broke out there

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were an estimated 10,000 Jews, 5,000 Ukrainians, and 2,000 Poles in Buczacz, and about 6,000 Jews and 14,000 Poles and Ukrainians in Czortków. The Germans marched into the region in early July 1941 and immediately enforced a series of anti-Jewish measures: Jews had to wear identifying armbands; their property was confiscated; and they were used for forced labor. Starting in the fall of 1941 most communities were ghettoized; executions of the “intelligentsia” were common. Deportations, especially to the Bełżec extermination camp, began in August 1942, accompanied as of October by mass shootings on site. In early 1943 all Jews not employed in labor camps were ordered killed. On June 30, 1943, Police Brigadier General Friedrich Katzmann, the SS- and Police Leader (SSPF) of the Lemberg District – the German name for occupied East Galicia – declared the area under his control judenfrei: only 21,156 registered Jews were still living in 21 labor camps. The following month the labor camps were also liquidated. Well over 90% of Galicia’s 500,000 Jews were murdered. Of the 60,000 Jews in the Czortków area (including Buczacz), Only 1,200 Jews were alive when the Red Army returned in July 1944.20 This general outline of the Holocaust in Galicia was reflected in events in Czortków and Buczacz. A few weeks after the Germans marched into these towns they murdered the first group of some 150 Jews in Czortków, and some 350 Jews in Buczacz. In both cases these victims were considered to be members of the intelligentsia who might provide leadership to the community. Sporadic local killings continued, mainly at a site called the Black Forest near Czortków and on the Fedor Hill near Buczacz. In late August 1942 the Jewish Ghetto in Czortków was surrounded and some 3,000 people were seized and sent by train to Bełżec. Another 600 people were deported in October; hundreds of others were shot on the spot. Mass killings in Buczacz began in October 1942 and lasted until the city was declared judenfrei in May 1943.

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About half of the estimated 10,000 Jews living in Buczacz were murdered in Bełżec; the rest were shot on the Fedor Hill and the Bashty Hill (where the Jewish cemetery was located). The killings were organized with the assistance of the Buczacz Jewish council (Judenrat) and the Jewish local police force (Ordnungsdienst), and were carried out by German police and SS-men from Czortków helped by Ukrainian militia units. In June 1943 the remaining labor camps (“Julag”) in Buczacz and Czortków were liquidated. The few instances of armed Jewish resistance in the vicinity of these towns were largely ineffectual. Czortków and Buczacz were liberated by the Red Army in March 1944. While only some 100 Jews from Czortków are known to have survived, about 800 Buczacz Jews came out of hiding. Most of them were murdered when the Wehrmacht recaptured the town in April. By the time the Red Army returned in July 1944, less than 100 Jews were still alive in or near Buczacz. In the waning months of the German occupation and following the recapture of the area by the Red Army, Ukrainian nationalists, who had previously participated in the mass murder of the Jews, conducted widespread ethnic cleansing of the local Polish population. By the late 1940s the region was made up almost exclusively of ethnic Ukrainians. The nationalists continued fighting Soviet police and army forces well into the 1950s. Since the fall of communism and Ukrainian independence, Western Ukraine has again become the center of Ukrainian nationalism.21 THE PERPETRATORS Heinrich Peckmann joined the Sipo outpost in Czortków soon after it was established following the German invasion of the Soviet Union on June 22, 1941. The outpost reported directly to SSPF Katzmann in Lemberg (Lwów, Lvov, L’viv), which was attached in August

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1941 to Governor Hans Frank’s General Government (Generalgouvernement), the German-occupied part of Poland that had not been annexed to the Reich.22 Born in Parsau, Lower Saxony, in 1904, Peckmann joined the police in 1925. While serving as a police sergeant-major in Cologne, Peckmann married in a church ceremony in 1932. His son was born the following year. In 1937 Peckmann was pensioned off from the regular police, but managed to gain entry into the criminal police (Kriminalpolizei, or Kripo) by joining the Nazi Party. In December 1937 Peckmann became a Gestapo official in Cologne. During his trial in 1962 Peckmann claimed to have performed some good deeds on behalf of his acquaintances while serving in Cologne. In 1938 Peckmann completed a Kripo training course and was appointed Kriminaloberassistent (chief criminal assistant or chief detective, roughly equivalent to sergeant) charged with keeping records of former concentration camp inmates. Promoted to Kriminalsekretär (criminal secretary, equivalent to second Lieutenant), Peckmann transferred in 1940 to several Sipo posts in Poland. In September 1941 Peckmann arrived in Lemberg, and the following month he was sent to Czortków. Peckmann was appointed deputy commander of the outpost in late 1942, and served as its commander between April and October 1943. In November 1943 he returned to Lemberg. Peckmann was eventually taken prisoner by the Soviets in Czechoslovakia in May 1945. Released shortly thereafter for health reasons, Peckmann returned to his hometown, but was interned again in 1946-47. In 1954 Peckmann rejoined the Cologne police force, and served as Kriminalobermeister (sergeant) until his arrest in 1960. Kurt Willi Otto Köllner served in Czortków between December 1941 and early 1944, most of the time as the Judensachbearbeiter (or official in charge of Jewish affairs) of the outpost. Born in 1908, Köllner was raised in Bad Dürrenberg, near Leipzig, where his father

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worked as sales director of a cooperative. In 1922 Köllner entered a commerce school in Leipzig, and then trained as an auto mechanic. From 1926 he worked for various firms as a mechanic and a driver. Considered reliable, discreet, and sociable, Köllner soon rose to a management position, and supplemented his income by acquiring a car rental agency.23 Köllner’s father had been a respected member of the Social Democratic Party since 1904, and the parental home often hosted politicians of considerable status. But although the son Kurt did join a trade union, he generally preferred sports to politics. He also adhered to the Evangelical faith and married in church in 1934. In 1938 his son was born, and that same year Köllner joined the SS and the Nazi Party. In his 1962 testimony Köllner claimed that he made this step in order to protect his socialist father from being sent to Buchenwald. And indeed, although his father was dismissed as director of the cooperative and was evicted from his residence, no further police action was taken against him. Relations between parents and son remained good throughout the Nazi period. In May 1939 Köllner was called up for emergency military service. Released in December, Köllner trained for three months at a border police school and was then transferred to the Sipo post in Warsaw. In August 1941 Köllner was sent to the Sipo post in Lemberg, and in December he arrived at the Sipo outpost in Czortków. Appointed Judensachbearbeiter in July 1942, by 1943 Köllner achieved the rank of SS-Scharführer (sergeant). When the outpost was dismantled in early 1944, Köllner returned to Lemberg, and was eventually taken prisoner by the Americans in Slovakia. Released in June 1945, Köllner returned to his hometown and old firm. He was evidently helped by his father’s influence as an old social democrat and opponent of the Nazi regime. Arrested again in August and held by the Soviets until 1950, Köllner then moved to the Saarland,

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where the West German authorities arrested him in 1958 and kept him in prison for most of the intervening period until his trial in 1962. Paul Thomanek played an important role, far beyond his humble rank, in the organization and subsequent murder of Jewish forced labor in Czortków and Buczacz. Born in Petershofen in 1909, Thomanek was raised in the Hultschiner Ländchen, a part of Silesia that was handed over to Czechoslovakia in 1920, annexed by Germany following the Munich accords of 1938, and returned to Czechoslovakia in 1945.24 Identities in this ethnically diverse region were fluid. Thomanek’s father remained chief pit-foreman in Petershofen all his life; his two surviving brothers became Czech citizens after the war; his sister moved to Bavaria. At home the family spoke “Moravian,” a Slavic dialect mixed with German. Thomanek began attending a German elementary school in 1916, but after 1918 his schooling was in Czech. Trained as a cabinetmaker, an active member of the local Catholic sports association and political party, as well as a youth leader, in 1929 Thomanek joined the police. But returning from two years of compulsory service in the Czech army, in 1932 Thomanek joined his father’s guild and began working as a mine cabinetmaker. He married a Czech woman in 1934, and their son was born the following year. When the war broke out, Thomanek volunteered to the Auxiliary Police, or Hilfspolizei, which was recruited from Nazi Party formations and was not part of the regular police and security services. In his trial Thomanek claimed to have joined this force in order to avoid recruitment to the Wehrmacht. Thomanek served as a policeman in several German-occupied Polish towns, but in November 1939 he was sent to train with a Waffen-SS Totenkopf (Death’s Head) unit. The following month Thomanek joined a Special Task (Sonderdienst) SS unit in Lublin, composed of ethnic Germans, which reported directly to the Higher SS- and Police

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Leader (HSSPF) Friedrich-Wilhelm Krüger, and to Governor Frank in Krakow. Frank himself called this unit a “murder squad” (Mördertruppe). Having meanwhile acquired Polish, Thomanek joined the Waffen-SS and was sent to Lemberg in October 1941. Thomanek’s first posting in Galicia was to the Jewish forced labor camps established along the planned route of Thoroughfare IV (Durchgangsstrasse IV or DG IV), an important transportation artery that the Germans hoped to build between Lemberg, the capital of Galicia, to Taganrog on the Ukrainian-Russian border.25 Construction and repair crews were taken from many towns in the region, including Czortków and Buczacz. The work was physically exhausting, nutrition and hygiene were appalling, and disease was rampant. The death rate from illnesses and arbitrary shooting was very high. Thomanek served there between October 1941 and November 1942. Still a mere Private, in November 1942 Thomanek was ordered to establish a labor camp for Jewish craftsmen in Czortków. Given a car for this task, Thomanek brought along “his” Jew, the commander of the Jewish police Wolf. He later also hosted his wife, son, and father at his post in Czortków. By then he was already in charge of all labor camps in the Czortków region. Thomanek’s position was such that in early 1943 he received a visit by none other than SSPF Katzmann, who gave him a Finnish submachine gun and commented that soon “things will be completely cleaned up.” Indeed, the Czortków camp was liquidated on June 23, 1943. Thomanek was then transferred to another camp, which was also liquidated the following month. Thomanek finally left Galicia in July 1944 and was eventually captured by the Czechs. He was still a mere SS corporal. Returning home after his release in 1948, Thomanek was arrested again by the Czechs and deported to Germany. For several years he worked in various

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menial jobs in Germany and Sweden, until he was finally arrested by the West German police in 1957. THE CRIMES These, then, are three of the men who participated in the destruction of the Jewish communities in the Czortków and Buczacz region. But what did they actually do and what were they charged with once finally subjected to West German justice? Though obviously responsible for the murder of tens of thousands, Heinrich Peckmann, former deputy commander and then commander of the Sipo outpost in Czortków, was indicted for only two cases of alleged murder: killing the bookkeeper Jakob Seldmann during a roundup in the village of Mielnica, near Czortków, in September 1942; and killing the handicapped Levi Auerbach during a roundup in Czortków in October 1943. Although the court dismissed Peckmann’s alibi of having been on leave at the time of the second killing, it also rejected as unreliable the testimonies of the two witnesses of these events.26 The testimony of the first witness, the 49-year-old dentist H., was dismissed on “objective grounds,” namely, that he could have misheard the name of the victim, Seldmann, as that of the indicted, Peckmann, who might not have even been present at the site of the killing. The court did not question the testimony on “subjective grounds,” however, which is to say that it did not assume that the witness was consciously lying. Conversely, the testimony of the 51-year-old elementary school teacher R. was not only rejected on “objective grounds” but the court also implied that it had some suspicions about the witness’s ability to tell the truth. The main, and somewhat extraordinary reason for this doubt, was an earlier testimony about the killing of Auerbach given by the witness to the Jewish Historical Commission shortly after the liberation of Galicia. According to this testimony

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Peckmann had in fact killed more Jews on the same occasion. The court could not reconcile the earlier version with the witness’s later testimony that Peckmann had only shot Auerbach. The implication was that since the witness might have exaggerated in testifying to the Jewish Commission, there was no reason to believe that his second statement to a German court was any more truthful.27 Peckmann was thus acquitted for lack of evidence for personally committing murder. An attempt to reopen judicial proceedings against him in 1970 also failed. By then Peckmann was 66-years-old, and seemed destined to end his life in the comfort of his own home.28 The case of Kurt Köllner was far more complex. For here was a man who not only claimed, as we have seen, to have joined the SS merely to protect his socialist father, but also one who consistently asserted his friendly feelings toward Jews. Thus Köllner told the court that throughout the 1930s he had maintained amicable relations with some Jewish families. He even helped one of his Jewish acquaintances to emigrate by buying up his possessions – in all probability for a suitably meager sum considering the galloping “Aryanization” of Jewish property at the time. Köllner also recalled in 1962 that he had openly criticized the Kristallnacht pogrom, and that he saved some other non-Jewish friends who had gotten into trouble with the authorities. Yet his nickname, “Mäuschen” (mousy), suggests another aspect of Köllner’s personality.29 Even while serving in the SS, Köllner supposedly kept intervening on behalf of Jews. As he asserted at his trial, Köllner received special praise from his superior at the Sipo post in Warsaw, Kriminalkommissar (Lieutenant or detective superintendent) Engels, for curbing Polish and Ukrainian extortions from Jews. Indeed, it would seem that in Engels he found yet another friend of the persecuted. Once he arrived in Lemberg and was employed in the construction of

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the DG IV, Köllner opined to SSPF Katzmann that without sufficient food, accommodation, and clothing, Jewish forced labor would not be productive. He also noted that thanks to their preponderance among Galicia’s craftsmen, the Jews were indispensable to the military. Unfortunately, Katzmann paid no heed to these arguments, since he saw the road-building project as nothing but Vernichtung durch Arbeit – extermination through labor of the local Jewish population.30 According to Köllner, it was because of his “defense” of the Jews that he was transferred from the comforts of Lemberg to the muddy streets of Czortków. Arriving there just before Christmas 1941, Köllner compensated himself for this punishment by bringing along his wife, who later took over the outpost’s registrar office. Appointed Judensachbearbeiter in summer 1942, Köllner again befriended the local Jewish community. His motivation, however, was far from humanitarian. In fact, Köllner was swiftly corrupted by his newly acquired power, exercised through contacts with the Czortków Jewish council and Jewish police. On the eve of the first roundup in Czortków in August 1942, Köllner promised the Jewish council that he could spare people from deportation by stamping their work cards. This facilitated Jewish collaboration and brought in a handsome profit from bribes for these life-saving stamps. Meanwhile, Köllner deceived the Jewish council about the timing of the roundup. Consequently the community was caught unprepared: some 3,000 Jews were deported to Bełżec, and another 300 were shot on the street.31 Köllner’s subsequent record reveals few traces of amicable relations with Jews. In early October 1942 he participated in another roundup in Czortków, involving the deportation of a further 600 Jews to Bełżec. During that time Köllner also organized deportations of many other Jewish communities in the area.32 Yet such generalized responsibility for genocide was not

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sufficient to bring about conviction in German courts. As we have seen, it was necessary to prove that the defendant was directly guilty of specific murders; that he acted with “base motives,” such as sexual lust or sadism; and that his actions were on his own initiative or in awareness of being in fulfillment of clearly unlawful orders.33 Thus Köllner was charged with eleven separate cases of murder. In August 1942 he shot the 15-year-old Haim Morgenstern with his pistol from a distance of about 8 meters; the youth had tried to escape from the Czortków police station courtyard, where scores of incarcerated Jews were about to be executed. Around the time of the second Czortków roundup of October 1942, Köllner shot the handicapped woman Rifka Schwebel point blank in the back of the head for failing to keep up with the other deportees. On October 4 he shot the elderly Schlomo Herschkowicz in the head from a distance of 3-5 meters under similar circumstances. In June 1943, during the liquidation of the Czortków Ghetto, Köllner shot the plumber Schorr, his wife, and the child she was holding. A few days later, Köllner detected the youths Emil Kitaj and Hania Adler trying to enter the labor camp in Czortków. Accompanied by a five-year-old child who was almost certainly his own son (born in 1938), Köllner shot the youths point blank as they fell to their knees and begged for their lives. Köllner was also active in Buczacz. On October 8, 1942, he shot and killed Jakob Halpern, who suffered from a severe intestinal illness, for failing to pull himself up into the deportation train during the first roundup in Buczacz. In November 1942 Köllner shot the elderly Julia Hirschkorn, who had been dragged out of her apartment and proved unable to walk. In March 1943 Köllner shot the Jews Mandel and Fuchs, after they were evicted from the Buczacz hospital. The following June, during the “extermination action” in Buczacz, Köllner hauled the

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elderly Rosen couple from their apartment, made them run ahead of him and then shot them in the head with a submachine gun. In early August 1943, during the liquidation of the labor camp in nearby Nagorzanka, Köllner discovered three youths hiding in a barn. He chased and shot the fleeing Mojsze Waisman, and then shot Bina and Gisela Horowitz point blank in the head as they knelt in front of him tearfully begging for their lives. Finally, Köllner was charged with a mass execution that took place in October 1942 in the town of Borszczów. Arriving there by car in the morning, Köllner arranged the roundup with the Jewish council and waited at restaurant while Ukrainian militia assembled the victims. He then followed the 28 Jewish men and women and the militia some 600-800 meters out of town and monitored the execution.34 Paul Thomanek was acquitted at his first trial by the Jury Court of Hagen in 1957. But soon thereafter he was indicted again for “having killed Jews in numerous cases on his own initiative, in part together with others, out of bloodthirstiness or otherwise with base motives and partly also in a gruesome manner, in the period from November 1941 to July 1943.” Relenting from his complete denial of any complicity at his first trial, during his second trial in 1960 Thomanek admitted that he had been present at shootings and mass executions, but denied taking part in them. He also admitted to having been in charge of several camps in the Czortków area and to participating in the liquidation of the Czortków camp, but claimed that he shot Jews only in self-defense, or in compliance with his superiors’ orders. Thomanek submitted to the court that, “today he knows that it is a terrible crime to eradicate an entire race. But at the time he could not refuse orders, since it was said, ‘Whoever doesn’t cooperate with us is against us.’”35 Thomanek was charged with a long series of crimes. As SS-man in the Kamionki forced-labor camp near Tarnopol, in November 1941 he shot the sick Jewish inmates Kleiner and Eisen,

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and killed Dr. Bela Blum, who was wounded in a melee during the food distribution. In December he a shot a woman named Sala who brought food for her incarcerated husband. In March 1942 Thomanek ordered two Ukrainian guards to flog Aron Schwarz 75 times, while he pressed his foot on the inmate’s head. He then shot Nahum Klein, who tried to eat the snow by the fence, having received no food or water for several days. Shortly thereafter he shot six sick inmates during a roll call. Several weeks later he shot the inmate Byk who was too sick to attend roll call. For these and other cases in nearby Tarnopol, the court relied on several witnesses. They included Dr. R., who was working at the time of the trial as head doctor in Israel and had served as a physician in the Kamionki camp. The doctor described Thomanek as the second most powerful man in the camp, noting that the inmates called him “Der Erschiesser” (the shooter). Born in 1908 in Tarnopol, Dr. R. had studied in his home town as well as in Vienna, Prague and Italy, and was raised speaking German. These credentials convinced the court of the veracity of his testimony. The court found the testimony of the witness G. reliable for similar reasons. Born near Kamionki in 1913 and a law school graduate in interwar Poland, G. reported that the defendant was known at the time as “the red dog Thomanek” because of his red hair and brutality. The witness O., born in 1891, was the owned of a lumber business and a brick factory in Tarnopol. He had studied law in Lemberg and Vienna and had served as an officer in the Austrian-Hungarian army. This witness described the arbitrary shooting by Thomanek of his 21-year-old nephew, Osias Seräth, who was kneeling with a group of other youths in the town square of Tarnopol during a roundup. The court accepted his testimony without reservation.36 20

Once he was appointed commandant of the labor camp in Czortków in November 1942, Thomanek reported directly to SSPF Katzmann in Lemberg, and was thus not under the control of the Sipo outpost in Czortków. This gave him absolute power over some 300 male and female Jewish workers along with several children. Shortly after his arrival Thomanek shot the grocer Bonia Hertmann and the cap maker Wachtel for no apparent reason. Yet witnesses concurred that initially Thomanek behaved relatively well, being concerned primarily with his own well being. For instance, Thomanek threatened to confiscate Dr. Schorr’s X-Ray machine if the latter did not provide him with regular supplies of pork and milk, which the doctor received from local peasants in return for his services. Dr. Schorr, who testified at the trial, was born in 1898, practiced as an X-Ray specialist before and during the war, and helped the Soviet Extraordinary Commission to exhume mass graves after the liberation of Czortków. By the time of the trial, he was practicing again in Israel. The court found him entirely reliable.37 In spring 1943 Thomanek became noticeably more brutal, possibly following Katzmann’s visit earlier that year. In May Thomanek publicly shot Sofia Wolf, Baruch Kratter, and Glaser Diamant. As she was led to the execution, Sofia Wolf, whose “offense” consisted of speaking through the camp’s fence with the Polish woman caring for her child, turned around and called: “Herr Camp Commandant, spare my life, I have a small child.” Thomanek shot her in the face and she fell dead to the ground. He then shot the other two men in the back. Some witnesses suggested that Thomanek merely wanted to try out the new Finnish sub-machine gun he had been given by Katzmann.38 On June 23, 1943, Thomanek liquidated the labor camp with the help of German gendarmes and Ukrainian militiamen. At the roll call of the entire camp population, Thomanek

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separated the men from the women and ordered everyone to lie on their stomachs and not to raise their heads. He then sorted out some 40-50 Jews to dismantle the camp’s workshops. At this point the inmate Mania (“Papusch”) called out to Thomanek: “Herr Camp Commandant, take me too, I am your barber after all.” Thomanek killed him on the spot with his submachine gun, also fatally wounding the inmate Bergmann, who was given the coup de grace by the gendarme Schultz. The rest of the Jews were transported in groups by truck to a former airfield and were all shot. When the brothers Gotesfeld refused to climb on the truck, Thomanek shot them dead. He also severely beat and then shot Max Lineal, whom he found hiding in the barracks. When the women’s turn came, a 17-year-old blond girl named Jäger begged Thomanek to spare her life. She too was shot on the spot.39 Thomanek’s version that he had tried to save the people he knew by selecting them, but had been compelled to defend himself when a Jew wielding a pipe-wrench attacked him, was rejected by the court. The court also dismissed Thomanek’s assertion that he merely collected the victims’ valuables at the airfield rather than participating in the shooting.40 Indeed, as it turned out, Thomanek was involved in killings throughout the region. In February 1943 Thomanek participated in a mass execution on the Fedor Hill, near Buczacz, in which some 500 Jews were shot in groups of ten into a pre-dug trench after being forced to undress. In April 1943, during another killing operation in Buczacz, Thomanek was strolling down the main street with the head of the Jewish council, Baruch Kramer (or Kraemer), when they encountered four young Jews who were caught trying to escape. One of them, Akiba Weissmann, ran up to Kramer and cried: “Baruch, save me, I want to live.” Kramer responded:

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“I can’t help you.” But as Weissmann persisted, Thomanek pulled out his pistol and shot him point blank.41 A few days later Thomanek and another SS-man raided a restaurant near Buczacz on a tip by a Ukrainian waitress. They found ten Jews who were being hidden by the new Ukrainian owner. They included former owner Leonie Folkenfolk, his wife, and their 9-year-old son; Dr. Fonki Neinan, his wife, their 5-year-old child, his mother-in-law, and his brother-in-law; and a man named Tischler together with his pregnant wife. Thomanek stripped the Jews of their valuables and shot them all with his submachine gun. The last to be shot was the pregnant woman, who threw herself at his feet and begged for her life.42 At his trial, Thomanek denied all charges. While recalling what he termed the “assembly-line” killing on the Fedor Hill, Thomanek claimed to have merely helped collect the victims’ valuables, and even remembered saying to a fellow SS-man on the drive back: “Look at these beautiful flowers and yet so many people have to die.” But Jewish survivors could detect no such compassion. The witness Rabinowicz noted that Thomanek was well known in Buczacz. A large man with red hair, Thomanek spent many days in the town, where he had his own room and made numerous demands, not least to be provided with “girls.” Whenever Thomanek appeared he would spread fear, for people knew that “something was going on.” The witness Kleiner also recalled with terror the man whom they called “Automaniuk.”43 The court accepted the testimonies of the Jewish survivors. Here too a personal profile of the witnesses served to establish their reliability. Rabinowicz, who was one of the young Jews present when Thomanek shot Weissmann on the street in Buczacz, was born in 1916 and was working at the time of the trial as an engineer in the food industry in Israel. Son of a well known merchant and city councilor in Buczacz, Rabinowicz served in the Polish army in World War II,

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escaped from German captivity back to Buczacz, and worked with his father under the Soviet occupation as manager of a grain storage depot. Because they helped Kramer under the Soviets, the latter helped them out when he was made head of the Jewish council by the Nazis. The court was impressed with Rabinowicz, who “speaks very good German” and “gave his testimony in a calm, informative manner.” As the court noted, “there was no indication whatsoever that he exaggerated, let alone provided any false information under to the pressure of his emotions.”44 The court also had a positive view of Kleiner, who was 62-years-old at the time of the trial and worked as a spice merchant in New York. Before the war, Kleiner too had belonged to the wealthy grain merchants of Buczacz. The court noted that Kleiner, “due to his temperament, gave his testimony in a more animated, even agitated manner, compared to Rabinowicz.” It insisted, however, that the witness, “whose profound and genuine Jewish faith was visible, left an impression of an uncompromising love of truth.” Thus social class, professional training, business success, European/German culture, and religious faith were all important elements in accepting the testimony of Jewish witnesses.45 But it was just as valuable to be able to report in a detached, “objective” manner about the horrors that one experienced or witnessed. Any demonstration of excessive emotion was seen as suspect by the court. This judicial preference for lack of emotions can be glimpsed from the following case. In early 1943, Thomanek discovered the teenagers Binka and Nuzia Steigmann visiting relatives at the Nagorzanka labor camp under his command, next to the town of Jagielnica. The two young women threw themselves at his feet and begged for their lives. Thomanek shot them one after the other in the head. The event was witnessed by Schlomo Wolkowicz, who was born in Jagielnica, near Czortków, in 1922, was trained as a technical engineer and was working in this capacity in Israel during the trial. What made his testimony credible to the court was not only his

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professional/social status, but also the fact that he depicted in what the judges called a “heart-wrenching manner” how he survived a mass execution in the town of Złoczów, crawled from under the pile of bodies, and made his way back to Jagielnica, in time to see the murder of the two teenaged girls. That he could report all this in a calm and composed manner was evidence of his truthfulness.46 And yet, even the setting of the court could not entirely obscure the terror that Thomanek instilled in his victims. During an inspection of the Jezierzany camp in June 1943, Thomanek hauled the elderly Rosen couple out of the barracks, led them to a small hill, and shot them with his submachine gun. The 59-year-old witness Dr. W., who worked as a lawyer in Poland before the war and practiced in Israel at the time of the trial, testified that “the defendant with his red hair was at the time an apparition that one would never forget.” The witness C., who was born in 1930, recalled the terrifying cry “Thomanek is coming!” when his tall, fat, red-haired figure was detected in the camp.47 THE JUDGMENTS How did German courts evaluate the guilt of the indicted? What understanding of the historical and political context of these events did the judges demonstrate and what role did this context play in sentencing the defendants? In other words, what relationship did the courts establish between personal guilt and state-directed genocide? In considering these charges against Kurt Köllner in 1962, the State Court of Saarbrücken took several factors into account: first, that the events occurred twenty years earlier; second, that the witnesses’ perception might have been distorted by the extraordinary nature of these events; third, that the witnesses might have been motivated by feelings of hate or revenge;

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and fourth, that the witnesses might have conspired with each other to condemn the defendant. The court concluded its review of witness testimony with the following statement: During the entire proceedings the court paid special attention to all such issues that were of the greatest significance to the credibility of the witnesses and, in view of these special circumstances, the court employed the strictest standards in weighing the credibility of the witnesses. The witness testimonies were therefore carefully scrutinized and assessed. The judgment was based only on witness testimonies in which errors caused by flawed observation or flawed memory as well as untrue statements could be ruled out with certainty.48 Köllner denied all charges. Not only did he stubbornly maintain that he had always had good relations with the Jews of Czortków, he went so far as to claim that some Jews even willingly revealed to him the locations of their hiding places. Just as he asserted that his transfer from Lemberg was punishment for his criticism of anti-Jewish actions there, Köllner also claimed that his kindness to the Jews of Czortków got him into trouble. In May 1943 he was called to an SS and police interrogation in Lemberg, and meanwhile his Czortków house was searched. Jewish witnesses, however, noted that Köllner’s alleged kindness derived from sheer greed: he did release some Jews from imprisonment, but only for exorbitant bribes. Indeed, it was these bribes that triggered the SS inquiry into his conduct. The court thus rejected this line of Köllner’s defense. Köllner’s attempt to plead mistaken identity and to incriminate a fellow SS-man also failed. He then claimed to have been on sick leave when many of the crimes in the indictment were committed. His wife provided an alibi for this assertion, but the veracity of her testimony was completely discredited by her extraordinary assertion that during her lengthy stay in Czortków she never knew about the mass killings of the Jews there.49 The court found Köllner guilty of most of the crimes as charged. Its findings concerning the Borszczów execution of 28 Jews are especially instructive, considering that in this case

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Köllner had not personally shot anyone, and that neither Köllner nor Peckmann were charged with the organization and supervision of the mass killing of tens of thousands. According to the court, Köllner had conceded during an earlier interrogation that he had in fact been in charge of the execution squad. Moreover, the court rejected Köllner’s assertion of moral qualms. As the closing statement noted, the court does not believe the defendant that he had inner reservations against taking part in the execution action. What contradicts this claim is first, that by that time he had already shot many Jews, even on his own initiative; second, his entire attitude toward the Jews proves that he had no humane considerations in his treatment of the Jews.50 In explaining Köllner’s motivation, the court referred to a comment made by his father after the war, namely, that “now his son must put out of his head his previous attitude and previous conduct.” This, the court noted, indicated “especially clearly the defendant Köllner’s moral transformation and the hold of National Socialist ideology over him.” Finally, Köllner’s argument that he could not evade orders was also rejected. The court pointed out that Köllner “generally did not shy away from avoiding his superiors’ orders when it suited him [as] can be seen from the fact that according to his own testimony, in early October 1942 he went on a private trip with Kriminalrat [captain or detective superintendent] Engels instead of participating in an Aktion [round-up and mass execution] that had just begun.”51 The court’s concluding observations about Köllner’s guilt and its implications for the rest of German society, however, were both damning and ambivalent. Crucially, even as the judges insisted on Köllner’s responsibility for his actions, they simultaneously described him as a victim of circumstances. The guilty party was ultimately Hitler’s regime. Yet the middle class values instilled in Köllner at home and in school should have immunized him against the evil of Nazism. The Third Reich appeared in this account to have nothing in common with German

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decency, education, upbringing or traditions. Hence Köllner’s personal guilt lay in failing to apply these values to the new political situation and his willingness to be seduced by the promises and opportunities of Nazism: [Köllner] received a completely normal education in his parental home and at school and was raised in a democratic state…. [H]e recognized quite early the danger of National Socialism… [and] remained inwardly unmoved by [its] ideas and goals… even after he joined the SS…. All this indicates that the defendant… would have probably continued to lead an ordinary bourgeois existence, had he not increasingly succumbed to the temptations of National Socialist ideology following the transformation of the political conditions. In this sense he became – like many others – a victim in the wider sense of the circumstances of the time.52 Speaking directly to the vexed issue of personal guilt within what was, after all, a criminal state, the court presented Köllner as a man who knew that he was committing a crime and yet did so for personal gain: [Köllner’s] guilt consists… in the fact that he sacrificed his previous moral and human restraints and that in the effort to promote his own advancement and profit as much as possible, he became a compliant and pliable instrument of the regime of the time, especially in the planned eradication of the Jews, even though, according to his own description, he knew precisely “that this is murder.”53 Moreover, the court argued that Köllner’s conduct served the goals of the Nazi regime and implied thereby that it was precisely opportunists of his ilk who were the instruments of Nazi power and genocide. But again a certain degree of ambivalence crept into the judges’ attempt to distinguish between opportunism and conviction; for while Köllner was said to have acted “only” for personal gain, the court attributed to him racist and thus potentially ideological sentiments as well: Through his deeds he consciously sustained and strengthened the National Socialist dictatorship’s rule over the Jews. He thereby made himself into the arbitrary master over life and death of his Jewish victims in his capacity as Judensachbearbeiter and by this means disseminated fear and terror. This is not to deny that in individual cases of momentary caprice he showed kindness to his favorites and to such persons from whom he could expect material profit. The court is convinced that this too happened only out of calculation and for his

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personal profit. The defendant acted out of this general attitude and out of a feeling of supposed racial superiority…54 Kurt Köllner was consequently found guilty of nine counts of murder and was sentenced to life imprisonment. In reaching this verdict, the court noted that “these acts were perpetrated in a period in which the actions of the regime of the time extensively effaced the concepts of justice and injustice and in which the respect for human life had largely vanished.” Conversely, the court insisted that “the defendant committed offenses against defenseless people and that he pitilessly and without any scruples destroyed or wanted to destroy the lives of elderly and in part ill persons as well as the lives of young people.”55 Thus the ambivalence of punishing a murderer who acted “normally” in abnormal times, or of bringing to justice an otherwise perfectly “normal” person who had been transformed into a murderer by the circumstances of his time, remained at the heart of the judgment. We might say that it is still there, not only regarding the Holocaust, but also many of the subsequent genocides the world has experienced. Paul Thomanek’s defense rested on his assertion of having acted on orders of his superiors or in conformity with SS instructions concerning the treatment of Jews. The Jury State Court of Hagen conceded that SSPF Katzmann had indeed ordered the killing of Jews unable to work. But the court argued that since this was a general instruction, it left a great deal of “free-play” for the actors in the field. As proof, the court cited Thomanek’s own statement that, “no one in Lemberg cared about me [in Czortków].” Moreover, the court asserted that since Katzmann’s “order” was aimed at facilitating a criminal undertaking it could not be seen as binding. As the court’s statement articulated this argument: “It is the basis of any moral order that the life of an individual who is not guilty of anything is inviolable.”56 According to the court’s logic, Thomanek’s guilt therefore had to derive from his ability to distinguish between criminal and lawful orders, or, more generally, between Good and Evil.

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As in Köllner’s case, the court assumed that this ability was acquired by Thomanek at home and in school: The defendant was raised in well-ordered family circumstances…. He was educated according to the general moral teachings… [and] he had a confessional commitment…. Through this personal development the inviolability of human life was always presented to him, so that this fundamental concept of morality was drilled into his consciousness. The defendant was also educated in the then democratic Czechoslovakia… in which there was no racial hatred…. [U]ntil he joined the Waffen-SS he had no contact with Jews.57 Because of this background of moral education, argued the court, “the defendant should have recognized… that the Katzmann order was a monstrous injustice.” The court then examined Thomanek’s explanation as to why he nevertheless complied with these instructions. Thomanek had argued, wrote the judges, that initially Katzmann’s order “made a terrifying impression on him.” But as Katzmann went on to say that the Jew was the worst enemy, [Thomanek] thought to himself, if so many millions of people cheer for Hitler, then what the general says must also be right. Apart from that he [Thomanek] was also afraid of refusing orders.58 The judges had no time for such arguments. As they forcefully put it, “[t]his assertion by the defendant that he initially had doubts, but then became convinced that the order was just, is pure evasion.” For the court it seemed crystal clear that “[t]he basic ethical rules, which were taught to the defendant for many years, could not and were not undermined and extinguished by the brief statement of an SS general.” What, then, was the true reason for Thomanek’s compliance? According to the court, “the conviction that the actions of the SS against the Jews were just could only exist – if at all – in people into whom National Socialist ideology had been drilled for many years.” And yet, as the court noted, “[t]his was not the case of the defendant. He was a grown, mature man… who… had been educated in a Christian and democratic spirit.” 59 30

Here, then, was the moral and legal conundrum. A man educated outside Nazi Germany according to fundamental humanitarian principles chose to obey blatantly criminal orders. The court was thus conflicted between its finding that a man who should have internalized an ethical worldview became a heartless murderer, and its need to demonstrate Thomanek’s ability to distinguish Good from Evil in order to find him guilty of betraying his conscience. It thus insisted that “the defendant recognized the unjust nature of the Katzmann order,” as evidenced by the fact that on the eve of one labor camps’ liquidation, Thomanek “consciously drank himself senseless, so as not to be present at the liquidation, as this already ‘disgusted’ him.” The court concluded that “[t]his is not the way a man behaves when he is convinced that he is doing the right thing.”60 This is of course a problematic assertion. It assumes that those who were convinced and committed Nazis could not tell Good from Evil. Such absence of any ethical perspective, however, would according to this logic make them less guilty of the crimes they perpetrated than those who, presumably like Thomanek, did internalize a moral worldview. In fact we know that SS men and policemen who killed hundreds of thousands of Jews often got drunk before, during, and after their actions.61 Did this mean that they were all unconvinced of the justice of their actions? If they were not convinced, who was? Could the entire genocide of the Jews have been carried out by men who were filled with doubts? What would be the meaning of such a statement? Can one envision a genocide that would be even worse because it was carried out by truly committed men, who never needed alcohol to soothe their conscience because they had no doubts? Is it necessary to be convinced in order to commit genocide? And what, then, is the relationship between ideological conviction in a genocidal ideology and confronting the reality of mass murder?62 31

There are no simple answers to these questions, and the court was certainly not called upon to address them. Nevertheless, the judges’ assumption that over-consumption of alcohol indicated moral revulsion and served to either blunt one’s moral sensibilities or evade massacre altogether is quite revealing. In making the dissolute into people of conscience and absolving the ideologues by denying their moral choice, the court’s argumentation sheds light on the much wider issue of German confrontations with complicity in genocide and the uncomfortable role of conviction in “coming to terms” with the national and personal Nazi past. Less problematically from a moral point of view but of major legal significance, the court also rejected Thomanek’s assertion of superior orders. This was the most common argument raised by former Nazi perpetrators after the war, even though the Nuremberg Tribunal had already dismissed it in 1945. In Thomanek’s case, the judges noted that “the situation of the defendant at the time was not such, that he could only save himself from a threat to his own life and body by acting as he did.” In fact, the court argued, it had not been shown that all SS men followed Katzmann’s order to the letter, or that in the Kamionki camp “an SS man who did not take part in executions of Jews faced danger to his own life and limb.” The court conceded that had Thomanek refused to shoot Jews, “he would have had to reckon with being dismissed from his post and possibly being sent to the front.” Obviously Thomanek did not cherish this prospect. But the threat of being forced to do what millions of other Germans were already doing certainly did not justify compliance with criminal orders.63 The Hagen court found Thomanek guilty of 26 counts of murders and sentenced him to life imprisonment. But in explaining its reasoning for this decision, the court described Thomanek’s guilt using precisely the same logic that the Saarbrücken court had employed in the

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case of Köllner. For here too, Thomanek was said to have been a victim of his time and circumstances. This argument referred not only to Thomanek but, by extension, to an entire generation of German men, including the court itself. “The question of the defendant’s motivation for his deeds,” wrote the judges, can only be answered by reference to his career, his personality, and his attitude to National Socialism. The defendant was… raised in a Christian spirit and grew up in a democratic state. The fundaments of a general ethical teaching were planted in him…. The court is… convinced that in all likelihood the defendant would have continued to lead a decent life, had he not come into contact with the horrible ideas and plans of the SS leadership through the transformation of the political circumstances and especially through the war. Clearly he does not carry any responsibility for these ideas and plans as well as for the transformation of the political circumstances and the war. To this extent he became – like many others with him – in a wider sense also a victim of that time.64 Following this general justification of complicity in Nazi crimes, the court elaborated Thomanek’s particular circumstances. And whereas in Köllner’s case it was his socialist home that provided the foil against which his actions were measured, for Thomanek it was his ambiguous ethnic identity that featured most prominently. Indeed, this mixed identity helped distinguish between Thomanek and most “ordinary” Germans, even as these “ordinary” Germans’ complicity had already been explained away by the court’s interpretation of circumstantial victimhood. Thomanek, argued the judges, was primarily motivated by an urge to become an even better German than his purely “Aryan,” true Reich-German comrades. Not merely a victim of the political circumstance of Nazi rule, his fate was formed also by the circumstance of being a resident of the borderlands [dass er ein Grenzbewohner war], a man whose national identity [Volkstumszugehörigkeit] could have been seen as somewhat questionable. The defendant declared… that the Czechs did not see him as a fully rightful citizen, because he was German, and that the Germans had also initially not seen him as a fully rightful German, because he had previously lived in Czechoslovakia. These circumstances stimulated many of these border- or ethnic-Germans, once they were back under German rule, to endeavor to demonstrate and prove from that

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point on that they were especially reliable and especially “good Germans.” The defendant also made such an endeavor.65 Yet if Thomanek’s circumstances explained his motivation so well, where, after all, lay his guilt? Here too the court employed a remarkably similar rhetoric to that which had been used to condemn Köllner. But while Köllner’s opportunism was one of power and material enrichment, Thomanek’s was focused on establishing his identity, which would then also ensure him of a more secure status and greater material comfort. “The guilt of the defendant consists,” argued the judges, in that as a result of his weakness of character he subordinated all the basic teachings he had earlier acquired to the effort to prove himself to be a “reliable” German, and that he went so far in this effort… as to offer himself ruthlessly and unconditionally to his contemporary superiors… not because he was convinced of the moral justification of this conduct, but because he saw it as serving his own personal interest. He clearly understood the dreadful injustice that would be carried out against the Jews…. But he also saw that the National Socialists, especially the SS with their program and their actions, were in power and in a certain sense were “masters of the world.” He saw… that he could share that power and that when he behaved in the manner required and expected of him by his superiors, things went well for him personally…. He led a good life both in Kamionki and later in Czortków. He had his own house in both places and even had his own room in Buczacz. In Czortków he owned a car and had a batman, who for his part also had an assistant [one of the Jewish witnesses]. For a certain time he was in a position to accommodate his wife and child and even his father. These are privileges that would have normally not been reserved for a simple SS man…. The defendant was offered them because he excelled in the “treatment” of the Jews… For this reason he was also then given command of the camp in Czortków and… [of] other camps in the area… all while still a mere private. This gave him a position of enormous power beyond any proportion to his rank… . [He] did not want to be called up by the Wehrmacht and be sent to a frontline unit. Motivated by these selfish reasons the defendant thus became a compliant accessory of the National Socialist dictatorship.66 Thomanek was therefore guilty precisely because he could tell Good from Evil and chose to serve the latter in order to further his own selfish interests. In this Faustian bargain, he acted neither under compulsion nor was he incapable of evading the circumstances in which he found himself. He joined the police in order to avoid the front; he brutalized others in order to gain his

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superiors’ favor; he killed on his own initiative in order to enhance and maintain his power. He also formed his own understanding of what becoming a “good German” meant: he believed that his German identity could only be ensured by carrying out the genocidal plans of the regime. And yet, in the eyes of the court, he also remained a victim of his circumstances. CONCLUSION The court’s characterization of this SS perpetrator contained other contradictions. The court condemned Thomanek for having chosen to kill Jews rather than risking his life at the front. This would imply that had he gained a better understanding of what it meant to be a “good German,” he would have refused the orders of the SS and participated instead in the Wehrmacht’s attempt to subjugate Europe and Russia to German rule. Thus the court posited that compared to Himmler’s troops, Hitler’s soldiers were decent and upright patriots. Furthermore, if Thomanek was motivated by his ambivalent status as an ethnic German, could one extrapolate from his case and say that ambiguous Germans were more likely to be Himmler’s willing executioners than “real” Germans? Or that Nazi indoctrination did not matter, since those who had not been subjected to it were just as bad, or even worse? And consequently, was one to conclude that such decent men as perhaps the judges themselves, who had presumably lived under Hitler’s rule during the war, either practicing the law or serving in the Wehrmacht, were not as likely to act like Thomanek, the mischling Czech-Moravian-German who evaded service at the front and had to prove his Germanness by killing Jews? We have examined three men who were at the sharp end of the Holocaust. Peckmann was a professional policeman; Köllner came from a socialist family; Thomanek was raised in Czechoslovakia. The professional policeman Peckmann, who in another historical context would have been the most representative of “ordinary Germans,” but during the war was one of the

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commanders of the Sipo outpost in Czortków and thus the man responsible for the murder of many of the region’s 60,000 Jewish victims, was acquitted. Köllner and Thomanek, one representing the compromised left-wing milieu, the other a son of Germany’s ambivalent borderlands, could hardly be seen as the embodiment of the German “heartland” that was still perceived as the source of authority and morality in the Federal Republic of the early 1960s. These two convicted perpetrators do not easily fit the stereotype. Thomanek appears at first sight as the typical low-ranking Nazi perpetrator, crass, brutal, and sadistic. But as the Hagen court discovers, he was only partly German, was raised as a good Christian in a decent family, and acted out of overzealousness to be accepted into the fold of the German nation. Köllner too seems initially like a typical Nazi; less brutal and more slick, but otherwise quite true to type. But as the Saarbrücken court reveals, he comes from a family with deep socialist roots. Neither of these men would have become a mass murderer had the Nazis not come to power. But then of course the Nazis came to power, maintained it, and used it to perpetrate genocide, precisely because such men as Köllner, Thomanek, and, of course, Peckmann, were so willing to help them. Or rather, “the Nazis” were such men as Köllner, Thomanek, and Peckmann. The judges struggled with this conclusion, because ultimately it implicated large numbers of Germans, including, possibly, themselves. They had to show that decent men could become killers if in evil times they abandoned their humanity for opportunistic reasons. But of course very few people in Nazi Germany did not exercise a measure of opportunism and the vast majority sacrificed a greater or lesser portion of their humanity. This was a question of degree, and circumstances. And even after the fact, most men walked free, men like Peckmann, who continued to enforce law and order in the Federal Republic, and innumerable other lawyers, judges, physicians, professors, biologists, anthropologists…. They became the mainstay of

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postwar society for another generation, and were treated with the same respect accorded to those Jewish witnesses who had earned medical and law degrees at prewar European institutions On the one hand, the perpetrators remain elusive figures: the convicted were not typical, and the typical were not convicted. On the other hand, when we observe such an unfathomable event as the Holocaust at the local level, we realize its human dimensions, even at their most inhuman. Ultimately, much of what we would like to think about the Holocaust turns out to be different when observed from close by: the perpetrators often knew the victims; they were motivated by the most conventional urges and desires even if they committed the most abominable crimes; the killing was both systematic and gratuitous, often without any specific motive apart from a sense of power and impunity; the killers knew that they were committing murder even as they were killing, and chose to act as they did because they hoped to gain from their actions, as indeed they often did, just as they hoped never to pay a price for their crimes, which indeed rarely happened. Even when the reckoning finally came, it arrived belatedly, often in much diluted form, and invariably carefully wrapped in layers of rationalizations that protected society from being drawn into the scene of the crime. 1 Devin O. Pendas, The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History, and the Limits of the Law (Cambridge and New York: Cambridge University Press, 2006); Rebecca Wittmann, Beyond Justice: The Auschwitz Trial (Cambridge, Mass., and London: Harvard University Press, 2005). 2 For estimates of Jewish victims of the Holocaust, see Raul Hilberg, The Destruction of the European Jews, 3rd ed., 3 vols. (New Haven and London: Yale University Press, 2003), III: 1301-1321. 3 Roy Gutman and David Rieff, eds., Crimes of War: What the Public Should Know (New York and London: W. W. Norton, 1999), 107-8, 153-57. Further in Michael R. Marrus, ed., The Nuremberg War Crimes Trial, 1945-46: A Documentary History (Boston: Bedford Books, 1997); Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven and London: Yale University Press, 2001). 4 Pendas, The Frankfurt Auschwitz Trial, 8-15; Wittmann, Beyond Justice, 17-37. 5 Wittmann, Beyond Justice, 44. 6 Pendas, The Frankfurt Auschwitz Trial, 53-55; Wittmann, Beyond Justice, 45. This is one of the main problems with the evidence used in Christopher R. Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (New York: Harper Perennial, 1992). 7 Wittmann, Beyond Justice, 37.

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8 See further in [Author’s name], “’I know I also Share the Guilt’: A Retrospective of the West German Parliament’s 1965 Debate on the Statute of Limitations for Murder,” Yad Vashem Studies (Jerusalem: Yad Vashem, forthcoming); Adalbert Rückerl, The Investigation of Nazi Crimes, 1945-1978: A Documentation, trans. Derek Rutter (Hamden, Conn.: Archon Books, 1980). 9 Wittmann, Beyond Justice, 46. 10 This argument is made about the Auschwitz Trial by Wittmann, ibid., 271-4. A careful analysis and critique of the peculiarities of the German criminal code and its application to Nazi perpetrators can be found in Pendas, The Frankfurt Auschwitz Trial, 56-79. 11 Christopher R. Browning with Jürgen Matthäus, The Origins of the Final Solution: The Evolution of Nazi Jewish Policy, September 1939-March 1942 (Lincoln: University of Nebraska Press, 2004); Peter Longerich, Politik der Vernichtung: Eine Gesamtdarstellung der nationalsozialistischen Judenverfolgung (Munich: Piper, 1998); Mark Roseman, The Wannsee Conference and the Final Solution: A Reconsideration (New York: Metropolitan Books, 2002); Christian Gerlach, “The Wannsee Conference, the Fate to German Jews, and Hitler's Decision in Principle to Exterminate all European Jews,” in Holocaust: Origins, Implementation, Aftermath, ed. Omer Bartov (London and New York: Routledge, 2000), 106-61; Philippe Burrin, Hitler and the Jews: The Genesis of the Holocaust, trans. Patsy Southgate (New York: Routledge, Chapman, and Hall, 1994). 12 Yisrael Gutman and Avital Saf, eds., The Nazi Concentration Camps: Structure and Aims, the Image of the Prisoner, the Jews in the Camps, multiple translators (Jerusalem: Yad Vashem, 1984); Ulrich Herbert, Karin Orth, and Christoph Dieckmann, eds., Die nationalsozialistischen Konzentrationslager: Entwicklung und Struktur, 2 vols. (Göttingen: Wallstein, 1998); Norbert Frei, Sybille Steinbacher, and und Bernd C. Wagner, eds., Ausbeutung, Vernichtung, Öffentlichkeit: Neue Studien zur nationalsozialistischen Lagerpolitik (Munich: K.G. Saur, 2000); Yitzhak Arad, Belzec, Sobibor, Treblinka: The Operation Reinhard Death Camps (Bloomington: Indiana University Press, 1987). 13 Dieter Pohl, Nationalsozialistische Judenverfolgung in Ostgalizien 1941-1944: Organisation und Durchführung eines staatlichen Massenverbrechens (Munich: Oldenbourg, 1996); Thomas Sandkühler, “Endlösung” in Galizien: Der Judenmord in Ostpolen und die Rettungsinitiativen von Berthold Beitz, 1941-1944 (Bonn: Dietz, 1996); Shmuel Spector, The Holocaust of Volhynian Jews, 1941-1944, trans. Jerzy Michalowicz (Jerusalem: Yad Vashem, 1990); Christian Gerlach, Kalkulierte Morde: Die deutsche Wirtschafts- und Vernichtungspolitik in Weissrussland 1941 bis 1944 (Hamburg: Hamburger Edition, 1999); Götz Aly, “Final solution”: Nazi Population Policy and the Murder of the European Jews, trans. Belinda Cooper and Allison Brown (New York: Oxford University Press, 1999). 14 Browning, Ordinary Men; Daniel Jonah Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (New York: Vintage Books, 1997); Gitta Sereny, Into That Darkness: From Mercy Killing to Mass Murder (New York: McGraw-Hill, 1974); Robert Jay Lifton, The Nazi Doctors: Medical Killing and the Psychology of Genocide (New York: Basic Books, 1986). 15 For some work on this, see Shimon Redlich, Together and Apart in Brzeżany: Poles, Jews, and Ukrainians, 1919-1945 (Bloomington: Indiana University Press, 2002); Jan T. Gross, Neighbors: The Destruction of the Jewish Community in Jedwabne, Poland (Princeton, N.J.: Princeton University Press, 2001). 16 For an overview of recent work on ethnic relations and violence in the “borderlands” of Eastern Europe, see http://www.watsoninstitute.org/borderlands/. 17 For more on the conceptualization of local studies and the specific sources for used in the case under discussion, see Omer Bartov, “Seeking the Roots of Modern Genocide: On the Macro- and Microhistory of Mass Murder,” in The Specter of Genocide: Mass Murder in Historical Perspective, ed. Robert Gellately and Ben Kiernan (Cambridge: Cambridge University Press, 2003), pp. 75-96, and Bartov, “Les relations interethniques à Buczacz (Galicie orientale) durant la Shoah selon les témoignages d’après guerre,” Cultures d’Europe Centrale, 5: “La Destruction des confins,” ed. Delphine Bechtel and Xavier Galmiche (Centre Interdisciplinaire de Recherches Centre-Européennes, Université de Paris-Sorbonne, Paris IV, 2005), pp. 47-67. 18 For this and the following paragraphs see, especially, Danuta Dąbrowska, Abraham Wein, and Aharon Weiss, eds., Pinkas Hakehillot: Encyclopedia of Jewish Communities: Poland, Vol. II: Eastern Galicia, ed. (Jerusalem: Yad Vashem, 1980, in Hebrew and Yiddish), 83-89, 443-450; Yisrael Kohen, ed., The Book of Buczacz (Tel Aviv: Am Oved, 1956, in Hebrew); Yesha’ayahu Ostridan, ed., Memorial Book to Commemorate the Martyrs of the Czortków Community (Haifa: Irgun Yots’e Chortkov be-Yisrael, 1967, in Hebrew and Yiddish); Office Central de Statistique de la République Polonaise, Statistique de la Pologne, Série C, Fascicule 78: Deuxième Recensement Général de la Population du 9 Décembre 1931: Logements et Ménages. Population. Professions: Voïévodie de

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Tarnopol (Warsaw, 1938). Many other sources, especially memoirs and testimonies, are cited in Omer Bartov, “Interethnic Relations in the Holocaust as Seen through Postwar Testimonies: Buczacz, East Galicia, 1941-44,” in Lessons and Legacies VIII, ed. Doris Bergen (Evanston, IL: Northwestern University Press, forthcoming). On violence in World War I and the Russo-Polish War, see Alexander Victor Prusin, Nationalizing a Borderland: War, Ethnicity, and Anti-Jewish Violence in East Galicia, 1914-1920 (Tuscaloosa: The University of Alabama Press, 2005). 19 On the general context, see Jan T. Gross, Revolution from Abroad: The Soviet Conquest of Poland’s Western Ukraine and Western Belorussia, expanded ed. (Princeton: Princeton University Press, 2002). See also Ben-Cion Pinchuk, Shtetl Jews under Soviet Rule: Eastern Poland on the Eve of the Holocaust (Oxford, UK: B. Blackwell, 1990). 20 For a general outline of the Holocaust in Galicia from the German perspective, see Pohl, Nationalsozialistische Judenverfolgung; Sandkühler, “Endlösung” in Galizien. See also Tuviah Friedman, ed., Report by SS-General Fritz Katzmann on the Killing of the Half Million Jews of Eastern Galicia: Documentary Collection (Haifa: Institute of Documentation in Israel, 1993). An outline with specific information on the Czortkow area is provided in Fritz Bauer et al., eds., Justiz und NS-Verbrechen. Sammlung deutscher Strafurteile wegen nationalsozialistischer Tötungsverbrechen 1945-1966 (J.u.NS-V), multi vols. (Amsterdam: University Press Amsterdam, 1968), XVIII: 659-60. On the German occupation of the rest of Ukraine and the Holocaust there, the so-called Reichskommissariat Ukraine, see Karel C. Berkhoff, Harvest of Despair: Life and Death in Ukraine Under Nazi Rule (Cambridge, Mass. and London: Harvard University Press, 2004); Ray Brandon and Wendy Lower, eds., The Shoah in Ukraine: History, Testimony, and Memorialization (Indianapolis: Indiana University Press, forthcoming 2006). 21 On ethnic cleansing of Poles in Western Ukraine, see Timothy Snyder, The Reconstruction of Nations: Poland, Ukraine, Lithuania, Belarus, 1569-1999 (New haven and London: Yale University Press, 2003), 154-78. On Ukrainian nationalist organizations, see John A. Armstrong, Ukrainian Nationalism, 2nd ed. (Littleton, Co.: Ukrainian Academic Press, 1980). 22 The following account of the career of Heinrich Peckmann is based on “Urteil Landgericht (LG) Saarbrücken 6 Ks 2/62 gegen Kurt O. Köllner und P.,” J.u.NS-V, XVIII: 658-9. See also Pohl, Nationalsozialistische Judenverfolgung, 255, 419; Sandkühler, “Endlösung” in Galizien, 251, 254-55, 442. There are some minor errors in both texts. 23 The following account of the career of Kurt Köllner is based on “Urteil Landgericht (LG) Saarbrücken 6 Ks 2/62 gegen Kurt O. Köllner und P.,” J.u.NS-V, XVIII: 655-8. See also Pohl, Nationalsozialistische Judenverfolgung, 226, 393, 416; Sandkühler, “Endlösung” in Galizien, 146, 250-53, 269. There are some minor errors in both texts. 24 The following account is based on “Urteil LG Hagen 601031 Lfd. Nr. 498 gegen Paul Thomanek,” J.u.NS-V, XVI: 728-33. See also Pohl, Nationalsozialistische Judenverfolgung, 169, 340, 392, 421; Sandkühler, “Endlösung” in Galizien, 141-148, esp. 145, 194, 254-6. 25 See details in Andrej Angrick, “Annihilation and Labor: Jews and Thoroughfare IV in Central Ukraine,” in Brandon and Lower, The Shoah in Ukraine. 26 J.u.NS-V, XVIII: 677-9. 27 Ibid. 28 Ibid., 682; Sandkühler, “Endlösung” in Galizien, 442. 29 J.u.NS-V, XVIII: 656-7. 30 Ibid., 657, 660. 31 Ibid., 660-2. 32 Ibid., 662. 33 For the context, see Rückerl, The Investigation of Nazi Crime; Ingo Müller, Hitler's Justice: The Courts of the Third Reich, trans. Deborah Lucas Schneider (Cambridge, Mass.: Harvard University Press, 1991), part 3; Michael Stolleis, The Law under the Swastika: Studies on Legal History in Nazi Germany, trans. Thomas Dunlap (Chicago and London: The University of Chicago Press, 1998), part 3; Irmtrud Wojak and Susanne Meinl, eds., Im Labyrinth der Schuld: Täter – Opfer – Ankläger: Fritz Bauer Institute Jahrbuch 2003 zur Geschichte und Wirkung des Holocaust (Frankfurt and New York: Campus Verlag, 2003). 34 J.u.NS-V, XVIII: 662-5. 35 J.u.NS-V, XVI: 733. 36 Ibid., 734-40. 37 Ibid., 742-3. Dr. Izrael Schorr, whose Polish-language testimony, along with several letters, is deposited at the Jewish Historical Institute (ZIH) in Warsaw (copies at the United States Holocaust Museum (USHMM) in

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Washington, D.C., and Yad Vashem, Jerusalem), testified also at the 1962 trial of Kurt Köllner. There too the court found him entirely reliable: “He gave his testimony in a calm and precise manner and in several points even provided evidence favoring the defendant. Thus he confirmed that the defendant Köllner stamped the work certificate of his wife, who was at the time disguised as his X-Ray assistant, although Köllner was well aware of this fact.” To be sure, Dr. Schorr had cured Köllner from venereal disease some in winter 1942-43 and must have therefore seemed useful. What remains clear is that the two had more than a fleeing acquaintance with each other up to June 1943, when Dr. Schorr “went underground” and remained in hiding with his wife and child until the arrival of the Red Army. 669-70; ZIH 301/4682; USHMM RG-15.084M Reel 51. 38 J.u.NS-V, XVI: 744. 39 Ibid., 747-8. 40 Ibid., 748-9. 41 Ibid., 750-1. 42 Ibid., 751-2. 43 Ibid., 752-3. 44 Ibid. 45 Ibid., 753-4. 46 Ibid., 754-6. See also Shlomo Wolkowicz, Das Grab be Zloczow: Geschichte meines Überlebens. Galizien 1939-1945 (Berlin: Wichern-Verlag, 1996). 47 J.u.NS-V, XVI: 756-7. 48 J.u.NS-V, XVIII: 665-6. 49 Ibid., 666-70. 50 Ibid., 676. 51 Ibid. 52 Ibid., 680. 53 Ibid. 54 Ibid. 55 Ibid., 682. 56 J.u.NS-V, XVI: 763-4. 57 Ibid., 764. 58 Ibid. 59 Ibid., 764-5. 60 Ibid., 765. 61 Numerous examples are cited both in Goldhagen, Hitler’s Willing Executioners, and Browning, Ordinary Men, as well as many other studies and documents. 62 The cases of Heinrich Himmler and Adolf Eichmann, both of whom became physically sick when they observed mass executions that were, after all, the consequences of their own orders and organizational skills, indicate not only the difference between Schreibtischtäter and brutal executioners but also between ideological conviction and implementation. This specific conundrum is hardly limited to the Nazi case. 63 J.u.NS-V, XVI: 765-6. 64 Ibid., 766-7. 65 Ibid., 767. 66 Ibid., 767-8.

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