Recent decades have seen intense study of the handling of the Nazi past in occupied and divided Germany after 1945 and the prosecution of Nazi crimes in particular. Devin Pendas’ 2006 book on the Frankfurt Auschwitz trial (1963-1965) made a significant contribution. His new book explores Allied and German trials and aspects of the German discourse surrounding them in the eastern and western parts of the country from 1945 to 1950.
The introduction outlines the book's main arguments but could say more about source selection and methodology and make a stronger claim for originality. Pendas seeks to challenge easy assumptions about “transitional justice,” particularly about whether transitional criminal trials promote democratization, but his depictions of an ostensibly unitary “transitional justice theory” seem overly simplistic.
Chapter 1 explores the International Military Tribunal (IMT), the Americans’ “subsequent proceedings” also held at Nuremberg, and, briefly, the military tribunals of the four individual occupying powers. The emphasis is on Allied goals and German responses. Pendas argues that neither the IMT nor the individual powers’ military tribunals were primarily designed to address the German population or promote democratization. Only the Americans’ “subsequent proceedings” constituted a concerted attempt to teach the Germans “history lessons in judicial robes” (34). But Pendas shows that their reception in the German legal press was replete with defensive legal and historical arguments that undermined the intended lessons.
Chapter 2 traces the four powers’ approaches to allowing German courts to prosecute Nazi crimes, which were shaped by pragmatic issues such as manpower, by political considerations such as the level of trust in the German judiciary, and by legal questions about which laws should apply to which crimes against which victims. Pendas highlights the prevailing problems in each zone, such as inconsistency in the French case, the dual application of German and retrospective Allied law (specifically Control Council Law No. 10) in the British case, the restriction to positive German law that precluded the prosecution of crimes against humanity in the American Zone, and a combination of inconsistency, rigour, and increasing politicization in the Soviet Zone.
Chapter 3 analyses the politicized (west) German legal debate about prosecuting crimes against humanity and the forceful objections against using retroactive law to punish Nazi crimes. Here Pendas provides a nuanced and detailed discussion, identifying multiple ironies and complexities, including the fact that “All sides simultaneously appealed to legal positivism and its natural law critique” (127). While the opponents of prosecutions (using retroactive or any other law) became increasingly influential, Pendas contends that their (often newfound) commitment to proceduralism contributed to West German democratization even if it undermined the pursuit of substantive justice.
Chapter 4 discusses developments in the Soviet Zone. German courts here were initially “not half-bad” (144). A degree of due process and judicial independence remained in 1947–1948 but completely disappeared by the time of the 1950 Waldheim trials that heralded East Germany's “fully Stalinist justice” (163). Even the earlier trials, Pendas suggests, contributed in various ways to the development of an authoritarian regime, even if they were also motivated by, and delivered, substantive justice.
Chapter 5 raises the issue of “trials that did not happen.” It details the murder of a Czech Jew in Berlin in April 1945, the aborted postwar criminal investigation thereof, and communist criticism of the responsible state prosecutor who seemed reluctant to prosecute Nazi crimes. Pendas notes that unpublicized investigations cannot be pedagogically effective and that neither the prosecutor's nor his critics’ approaches promoted the rule of law.
An epilogue briefly addresses the politics of amnesty in the early 1950s and the fate of Control Council Law No. 10. It also summarises Pendas’ arguments: that one cannot speak of a “unitary system of transitional justice” in occupied Germany (200); that Allied trials “provoked more resistance than introspection” (198); that giving German courts jurisdiction over crimes against Germans produced greater impact and more complex debate, in which western opponents of prosecutions made their case on due process grounds, ruling out the kind of “anti-constitutionalism” (200) that had plagued the Weimar Republic; and that even early trials in the Soviet Zone, which displayed due process, contributed to Stalinization.
Even if they are not entirely new, these are important points. Pendas makes numerous useful conceptual distinctions, some of which he could apply more consistently. What constitutes politicization or a “political trial” in the quintessentially political context of transitional justice deserves more systematic consideration. So too does the relationship between criminal prosecutions and denazification in the various zones. Pendas claims unconvincingly that the two were folded together in the Soviet Zone, but his discussion of the American Zone largely ignores that many crimes (such as denunciation) were addressed there in the context of denazification. The book thus highlights both the benefits and the difficulties of adding to the crowded literature in this highly complex field that continues to fascinate scholars and students, as this well-written book undoubtedly will.
