Jonathan P. Baird

When it comes to little-known, important stories about Jewish resistance to the Nazis in the 1930’s and after, the story of Fritz Bauer stands out. Hailing from Stuttgart, Bauer was a lawyer, a judge and a prosecutor in Germany both before the Nazis came to power and after they were vanquished.

For 38 years, he used his legal skills to defend democracy and then later to pursue Nazi war criminals. After the war, his mission was lonely and he faced unremitting German hostility.

People might assume that after the Nazis were defeated in 1945, public opinion turned. That was not the case for many years in Germany.

There was a protection racket or it could be called a conspiracy of silence to hide Nazi crimes. The German judiciary remained reluctant to prosecute Nazis. Thousands of former Nazis were returned to positions of power in West Germany in government ministries, the police and the judiciary. Only a very tiny number of Germans who participated in war crimes or crimes against the Jewish people ever faced prosecution.

This history is little-known as the Cold War between the United States and the Soviet Union superseded the demise of German fascism. It is notable that in 1958 Germany’s highest court, the Federal Constitutional Court, claimed that not one of the verdicts of the Nuremberg trials was legally valid.

Bauer was a legal renegade. To appreciate his later accomplishments after World War 2, it helps to know about the pre-war period. Bauer became a criminal judge as a young man in 1930. Unlike most judges who were conservatives, Bauer was a member of the German Social Democratic Party, a left party opposed to fascism. Although he was Jewish, he downplayed his background.

Even before they came to power, the Nazis targeted Jewish judges. Victimized by anti-semites who made accusations, Bauer was demoted and taken off criminal cases. He had become better known because he and Kurt Schumacher, the head of the Social Democrats in Stuttgart travelled around Germany giving speeches defending the Weimar democracy. It was a time of intense political polarization.

After the election in 1933 with Hitler appointed Chancellor by President von Hindenburg, Nazi partisans arrested Bauer and sent him to a concentration camp where he spent eight months. He faced torture and relentless abuse. The Nazis forced him to clean the “twelve-cylinder”, a filthy pit beneath the camp’s latrine.

As noted, Bauer managed to get out of the concentration camp. He believed his release was due to friends in the judiciary. Out of captivity, he was treated like a criminal. He could no longer earn a living as an attorney as Jewish lawyers were banned. Bauer and his family escaped to Denmark which also proved to be a hostile environment. As the Nazis pursued their opponents in Denmark, Bauer ended up locked up again first in a Copenhagen prison and then in an island prison camp. He got out after a couple months.

In 1943, Bauer heard there was a plan to round up Denmark’s Jews. He went into hiding. He and his family escaped to Sweden in a motorboat owned by a Danish fisherman. His family members who had remained in Stuttgart were murdered by the Nazis.

When the Nazis capitulated in May 1945, Bauer wanted to return to Germany as soon as possible. Regarded as “too Jewish”, Bauer remained a pariah. He could not get any job offer even though he tried to sell himself as now having “no religion”. In spite of a very strong legal background, the Jewish tag diminished employability prospects because of profound anti-semitism that remained the rule in Germany.

He resettled in Germany in 1949. He was finally able to get a legal job as a provincial attorney general in an obscure court close to the East German border. It was from this perch that Bauer made his mark.

Prosecuting Nazis was not the path to success and popularity in Germany. A case came along though that grabbed Bauer. A prominent former Nazi, Otto Ernst Remer, had called the plotters of a July 1944 attempt on Hitler’s life “traitors”. At issue in the case was whether Remer had made a factually false statement.

Being media savvy, Bauer engaged the press. He used the trial as a consciousness-raising exercise about the evils of fascism. Bauer persuasively argued that disobeying a tyrant was patriotic. Remer ended up with only a three month sentence he never served but Bauer succeeded in sparking a national debate.

It was not lost on Bauer that the Holocaust was not the focus of the Nuremberg trials in 1945. The Nuremberg prosecutors picked 24 defendants who were tried for waging a war of aggression. Nuremberg did not focus on the concentration camps. The Holocaust was included in the list of indictments but it played a marginal role in the trials.

Bauer gained fame and notoriety because unlike almost all other German jurists he pursued bringing Nazi criminals to justice. Nothing like that had been done by the German judicial system. Thousands of Germans implicated in mass murder simply disappeared into the post-war normalcy of everyday life.

In 1957, an Argentine Jew, Lothar Hermann, privately wrote Bauer that he knew Adolf Eichmann, chief organizer of the Holocaust, was alive in Buenos Aires. Eichmann was living under an assumed name and Hermann had his address. The West German intelligence service had known about Eichmann since 1952 but sat on the information. Even worse, Nazis like Eichmann, were protected by a well-connected network of sympathizers.

Bauer secretly passed his Eichmann file onto the Israeli secret service, the Mossad. He could tell virtually no one because experience had proven that any leak would allow Eichmann to escape. Bauer’s work had been frequently thwarted by other civil servants sharing information and warning Nazi suspects in advance of their possible arrest. In this instance, Bauer played a key role behind-the-scenes in Eichmann’s apprehension by the Israelis.

In 1963-1964, in Frankfurt, Bauer pursued his most audacious mass trial, prosecuting war crimes committed at Auschwitz. Bauer sought to reveal the historical truth of that concentration camp. He recruited the Institute for Contemporary History in Munich to prepare expert reports on Nazi persecution. He selected defendants who represented a cross section of the whole camp that would expose the system as a whole. In his biography, titled Fritz Bauer, Ronen Steinke wrote:

“Bauer and his team of prosecutors wanted to highlight the division of labor that had enabled the Nazi killing machine to run so smoothly, a division of labor that historians would later identify as the key structural feature of the Holocaust…The savage efficiency with which the mass killings were performed depended on highly specialized tasks being distributed through the Nazi workforce in a factory-like manner.”

The Auschwitz trial did not result in long sentences for the defendants. The judges assigned responsibility for the crimes of the Holocaust only to the men who gave the orders like Hitler, Heydrich and Himmler.

In 1968, Bauer died. His personal bravery paved the way for greater change that came over ten years after he was gone as Germany did ultimately reckon more with the legacy of the Holocaust. One of Bauer’s own prosecutors described him as “ a powder keg”.
During his life he faced constant death threats and late night phone callers screaming things like “Die, you Jewish pig!”.

Whether democracy and the rule of law will survive in America may depend on whether there are jurists and prosecutors with the courage of a Fritz Bauer.