Book Review: The Mauthausen Trial: American Military Justice in Germany.

The Mauthausen Trial: American Military Justice in Germany, Cambridge, Mass.: Harvard University Press, 2012
Tomaz Jardim
Reviewed by Kalus Neumann, Swinburne University of Technology

After the Second World War, the Americans tried war crimes suspects in 462 trials on the site of the former Dachau Concentration Camp near Munich. One of the largest of those trials, the first to deal with crimes committed at the Mauthausen Concentration Camp, is the subject of Tomaz Jardim’s excellent book, The Mauthausen Trial. The trial of sixty-one men lasted a mere thirty-six days. The proceedings nevertheless resulted in fifty-eight death sentences, forty-nine of which were carried out. No other trial in American history has resulted in as many executions.

Jardim’s meticulously researched book throws new light on a trial that was overshadowed by the proceedings before the International Military Tribunal at Nuremberg, therefore barely registered with the public in Germany and Austria or in the United States at the time, and is now all but forgotten. This lack of attention can’t be attributed to the nature of the crimes for which the accused were being tried at Dachau. Close to 200,000 people had been imprisoned in Mauthausen; about half of them did not survive.

The courts set up by the Americans at Dachau were military commissions comprised of seven to nine officers. All of the officers had to have previously sat on courtsmartial, but only one was required to be a trained lawyer. They were to try war crimes, including “offenses against persons or property which outrage common justice or involve moral turpitude, committed in connection with military operations”. This fairly elastic brief made it possible to try perpetrators for crimes committed outside the theatre of war, even if they had been civilians at the time.

The court procedures were designed to be expedient. Even death sentences could not be appealed. The rules of evidence were less stringent than in a domestic American court of law. According to the procedural guidelines, hearsay evidence was admissible. That leeway was crucial, because sometimes there were no surviving witnesses.

According to Jardim, the military commission courts also made use of an innovative provision, the concept of a “common design”. Unlike at Nuremberg, where the prosecution had to prove the defendants’ role in the planning, preparation or initiation of the crime with which they were charged, the prosecutor in the Mauthausen trial was required “merely to illustrate that the accused had participated in the maintenance of a criminal enterprise that resulted in the death of inmates.” The concept allowed the Americans to try not just those ultimately responsible for the camps, but all camp personnel, irrespective of whether or not they had personally harmed anybody. The prosecution needed only to provide evidence of the existence of a scheme to commit atrocities and then show that the defendants were aware of and played their part in it.

The Mauthausen trial began less than a year after the camp’s liberation and only twelve weeks after the appointment of a prosecutor. He and his small team of twentytwo – the Nuremberg prosecution had a staff of 650 – relied on the assistance of those most interested in the defendants’ conviction, survivors of the camp. The survivors who played particularly prominent roles in assisting Allied investigators tended to be former political prisoners. Many of them conceived of the concentration camps primarily as instruments designed to crush the Nazis’ political opponents. They failed to draw attention to the fact that about a quarter of Mauthausen’s victims were Jews.

The picture built up during the trial, which relied heavily on the testimonies of a particular group of survivors, was accordingly skewed.

Until at least the 1960s, West Germans regularly invoked the first Nuremberg trial in order to claim that justice had been done when the Allies had dealt with a small clique of criminal masterminds who could be held responsible for whatever wrongs were committed between 1933 and 1945. With the conviction of the twenty-three Nuremberg defendants, everybody else was able to invoke versions of the Nuremberg defence, the plea of superior orders, and be miraculously exculpated.

Could the Mauthausen trial, and other proceedings like it, have provided a better lesson than Nuremberg? After all, it proposed that not only those ordering mass murder were responsible, but also many others: those abetting the atrocities, those condoning them, and those who were aware of them but decided to carry out their duties regardless. As Jardim keeps reminding the reader, however, the postwar military commission trials with their tailor-made rules of evidence inevitably produced judgements that were contestable, even at the time. And how does a military commission court sitting at Dachau in 1946 differ from the controversial body created under the US Military Commissions Act of 2006 and sitting at Guantanamo Bay? The Mauthausen Trial deserves a wide readership – not just on account of Jardim’s skilful handling of a neglected episode in the history of historical justice, but also because of the broader questions it raises (although the author leaves them to others to explore).

An extended version of this review will appear in Inside Story.