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The Nuremberg SS-Einsatzgruppen Trial, 1945-1958: Atrocity, Law, and History.

The Nuremberg SS-Einsatzgruppen Trial, 1945-1958: Atrocity, Law, and History, by Hilary Earl. New York, Cambridge University Press, 2009. xv, 336 pp. $85.00 US (cloth).

In the aftermath of the defeat of Nazi Germany, the US became involved in three kinds of post-war trials: the International Military Tribunal at Nuremberg that tried the most notorious top Nazi leaders; a number of military tribunals, especially at Dachau, that tried relatively low-ranking suspects, such as concentration camp personnel and those accused of committing war crimes against American troops; and twelve American Military Tribunals also at Nuremberg (actually civil courts under the American military occupation) that tried middle-ranking suspects from selected German institutions such as industry, the medical profession, the military, the judiciary, state ministries, and branches of the SS. As Hilary Earl points out in this fine, well-researched, and very readable study, the discovery of the Einsatzgruppen reports compelled American prosecutors to devote one entire trial in this last category to twenty-four selected Einsatzgruppen leaders, which thus became the only such trial that focused solely on what we would now categorize as crimes of the Holocaust. The main accomplishment of the trial was to illuminate the Nazi genocidal program to kill all Jews captured on Soviet territory.

For historical purposes, according to Earl, this trial served less to reconstruct the actual course of events of the Final Solution in the east than to provide the site on which to study the defendants' own self-representations, which she argues should be taken seriously by scholars in order to ascertain their motivations. The pivotal figure of her study in this regard is Otto Ohlendorf, the commander of Einsatzgruppe D, who offered stunningly incriminating evidence as a star witness for the prosecution at the International Military Tribunal even before he himself ended up in the dock in subsequent proceedings. Ohlendorf, followed by most of the other defendants, pursued a two-pronged, but ultimately contradictory, defense argument. First, they pleaded duress in having to obey superior orders. But they could not refrain from simultaneously making a second argument, claiming that the killings were also militarily necessary and justifiable self-defense in a total war against Jewish Bolshevism that threatened to destroy Germany if not destroyed first. In short, the defendants were "ideological soldiers" who consistently clung to their belief in the rightness of what they had done and showed no remorse whatsoever. For Ohlendorf in particular, the competing defense argument of obedience to superior orders was especially dubious, given his self-portrayal as a maverick critic and opponent of other National Socialist policies.

In addition to ideological conviction, the twenty-four indicted Einsatzgruppen officers had a number of other features in common. Twenty-two of twenty-four were born between 1899 and 1914--the generation that missed the Great War but were traumatized by the defeat. Only one of twenty-four was Catholic. Twenty had the university-preparatory Abitur degree, nine had law degrees, and six had PhDs (including Dr. Dr. Otto Rausch, commander of Einsatzgruppe C, who had two!). Clearly education was no barrier to ideologically-motivated and state-sanctioned mass murder.

From the beginning, Ohlendorf eagerly sought to ingratiate himself with the victors as a co-operative witness, but still did not confess his Einsatzgruppen activities until the late summer of 1945. Turned over by the British to the Americans as a potential witness against Ernst Kaltenbunner, a defendant in the International Military Tribunal, Ohlendorf made detailed statements about receiving orders for the Final Solution. In the initial version of the comments (made in October 1945) there were two orders from Hitler via Himmler: a preinvasion verbal order (in his own words) "to remove Jews, women, men, and children, and communist functionaries," and an August 1941 order to kill (in Earl's words) "all Jews, without exception" (p. 188-89). In a subsequent version, Ohlendorf focused only on the pre-invasion order to kill Jews and functionaries, now allegedly delivered to the Einsatzgruppen officers by Bruno Streckenbach. He implied, though he did not state explicitly, that this meant all Jews. Earl notes that the Americans never pushed Ohlendorf to sort out the different accounts because his testimony both confirmed their own assumptions and served to disprove the allegations of numerous defendants that Jews had been killed for military reasons, not as the result of a premeditated program of racial genocide. Moreover, the trial focused on the mass murders that the Einsatzgruppen had committed, not when and what kind of orders they had received, so this issue that was later deemed so crucial by historians was basically irrelevant to the prosecution case. Earl discounts the Alfred Streim thesis that Ohlendorf organized a conspiracy among the defendants to provide false testimony as part of a legal defense strategy of pre-invasion orders, because his initial accounts were given as a witness for the prosecution, when he did not expect to face trial himself. She thinks the ambiguities of his testimony had more to do with the frailties of human memory and the lack of focused interrogation than with calculated untruthfulness.

If the figure of Ohlendorf dominates Earl's book, she notes that the trial itself was dominated by Judge Michael Musmanno--a man who in her view "turned the courtroom into his own personal stage" (p. 220). Musmanno was a controversial figure who began his legal career as a champion of Sacco and Vanzetti, and who dismally concluded his career as a red-baiting McCarthyite and a buffoon of crass self-promotion at the Eichmann trial. At the Nuremberg Einsatzgruppen trial, he was in his prime, often posing to the defendants penetrating questions concerning their motivations--a line of questioning that the prosecution itself had chosen not to pursue. In the end, in what Earl deems a reasonably fair if not perfect trial, twenty-two remaining defendants were sentenced: fourteen to death, two to life imprisonment, three to twenty years, two to ten years, and one to time served. If, in the end, only four were hanged, and all others released from prison by 1958, this was a fault not of the trial itself, but of a subsequent American failure of political will in the face of a persistent and well-orchestrated German campaign for amnesty. Ironically, I would note, the last men convicted in the Einsatzgruppen trial were set free under German pressure in the very same year that ten men of the Tilsit Kommando were convicted in the courtroom in Ulm, marking the point at which Germany itself began a serious judicial reckoning with Nazi genocide.

Christopher R. Browning

University of North Carolina at Chapel Hill
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Author:Browning, Christopher R.
Publication:Canadian Journal of History
Article Type:Book review
Date:Sep 22, 2010
Words:1078
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