How the German State Haphazardly Prosecuted Nazi War Criminals

I came to Wangen, in southern Germany, to meet Thomas Walther, a 76-year-old retired judge with piercing eyes, long gray hair, and dark bushy eyebrows. His shadow loomed large over the 2020 trial of former Nazi SS concentration camp guard Bruno Dey, even though he never once set foot inside the Hamburg courtroom. Without Walther and the tale of perseverance I came to hear, the man behind the red folder would have likely remained anonymous until his dying days.

In the small but borderless world of lawyers and scholars who dealt with Nazi crimes, Walther was something of a celebrity. He was the recipient of awards and prizes, including the Order of Merit of the Federal Republic of Germany. Yet he lived modestly on the ground floor of a terraced house on the outskirts of Wangen, which he shared with one of his daughters and her family. The small garden at the back of the house was filled with brightly colored plastic toys and a playhouse. We sat inside, sipping cappuccinos at his wooden dining table, and Walther started telling me how he ended up hunting Nazis.

His life, he explained, took a dramatic turn in the summer of 2006, just after he retired from his job at the nearby district court. Still only in his mid-sixties, he felt it was too early to stop working. Walther remembered telling one of his superiors that he was at the height of his judicial abilities and wanted to do “something useful and meaningful” after standing down from the court. He wanted a last challenge, and when he saw that the Central Office for the Investigation of National Socialist Crimes was looking for investigators, he decided to sign up.

Holocaust trials in the 1950s were typically the result of carelessness and coincidence, rather than the fruit of a structured effort by the West German authorities.

The Zentrale Stelle (“Central Office”), as it is commonly known, was established in December 1958 to do a job that few in Germany wanted to do: track down Nazi criminals. Based in a former prison in the sleepy Swabian town of Ludwigsburg, Nazi hunting has been its mission ever since. The Central Office was set up in response to perhaps the most famous Holocaust trial in the early years of the Federal Republic: the so-called Einsatzgruppen trial that was held in the southern German city of Ulm from April to August 1958. The Einsatzgruppen, or action groups, were death squads made up mostly of SS members and policemen, and were responsible for mass executions of Jews, Communists, partisans, and anyone else the Nazis wanted dead in territories recently occupied by the Wehrmacht.

The ten men on trial in Ulm had belonged to the Einsatzkommando Tilsit, and stood accused of murdering more than 5,500 Jewish men, women, and children in the border region between Germany and Lithuania in 1941. The case came to light not because of diligent work by police and prosecutors but because the most senior member of the group, a former Nazi police chief by the name of Bernhard Fischer-Schweder, had been too brazen even by the standards of 1950s Germany.

Having successfully evaded identification and prosecution in the immediate post-war period (the denazification process concluded that he was “unencumbered”), Fischer-Schweder eventually threw caution to the wind in 1955. His past caught up with him after he sued the regional government with the aim of winning back his old job as the director of a refugee camp. That brought attention in the local press, where he was soon identified as the former head of police in the Baltic city of Memel, the present-day Klaipėda in Lithuania, and a crucial figure in a series of mass shootings in 1941.

Fischer-Schweder had good reason to feel safe: countless other Nazi-era officials—from policemen and judges to bureaucrats and military officers—had indeed been able to resume their careers after the creation of the Federal Republic. In Fischer-Schweder’s case, however, the publicity prompted a closer examination of his record during the war and led prosecutors to file murder charges against him and nine others. The trial sparked unusual interest among the German public and was closely covered by the media.

The Tilsit killings were remarkably well-documented, as was the cold-blooded eagerness with which some of the accused had taken part in the slaughter: in one instance, the men had even posed for souvenir photos after the shooting was done. Fischer-Schweder had put together an execution squad from forces under his command on his own initiative (he had in fact only been asked to supply men to guard the surrounding area). The verdict made clear that he also played a key role in the actual shootings, checking on victims after the first salvo and providing the coup de grâce to those still alive.

Yet even though Fischer-Schweder was a senior SS officer and a committed Nazi, who had volunteered for the mass killings and fired his own gun, the court found him guilty only as an accessory, a minor figure who had merely helped carry out the crime. “All of the accused who took part in the shootings at Garsden… acted in response to an order, not with the will of the perpetrator but the will of the accessory,” the judges found. The men had not wanted to commit the crime “as their own” but had wanted to support someone else’s crime. They were, the verdict said, nothing but “tools of the Führer.” Fischer-Schweder was sentenced to ten years in prison. The other nine defendants were given prison terms of between three and fifteen years.

Aside from the dubious legal and moral conclusions contained in the verdict, the Ulm case also laid bare a practical weakness of the German approach toward Holocaust prosecutions: the lack of a central authority to investigate such crimes. Germany’s criminal justice system, much like its political system, was (and still is) highly decentralized. That meant courts and prosecutors would usually only take on cases that had a clear local connection—if the accused was a local resident, for example, or if the crime itself took place in the district.

In Holocaust cases, such a geographical link was fiendishly hard to establish, since the vast majority of victims were murdered in camps and killing fields in Russia and eastern Europe. And without a central register of suspects or a special authority charged with finding them, it was impossible for police and prosecutors to know whether a potential perpetrator was present in their area. The problem was accurately described by Lawrence Douglas, a U.S. legal scholar and expert on Holocaust trials. “Crime tends to be local,” he wrote, “and Germany’s federated system, like its American counterpart, was well equipped to deal with ordinary criminal acts, but not with a continent-wide campaign of extermination.” As the case of Fischer-Schweder showed, Holocaust trials in the 1950s were typically the result of carelessness and coincidence, rather than the fruit of a structured effort by the West German authorities.

In post-war West Germany, it seemed, even the Nazi hunters had a Nazi past.

The Ulm trial also coincided with a growing awareness among jurists, politicians, and the wider public that courts were running out of time to prosecute and punish Nazi criminals. The statute of limitations enshrined in Germany’s criminal code at the time meant that prosecutors only had a few more years before Nazi crimes—all Nazi crimes—would be barred from going to trial. For manslaughter, that period was fifteen years after the day the crime was committed. For murder, it was twenty years. In practice, this meant charging a former SS man for manslaughter in connection with the Holocaust would be all but impossible after 1960 and for murder after 1965.

In just seven years, even the worst mass killers would no longer have to fear prosecution. That prospect caused political unease in Germany, at least in some quarters, and sparked a protracted debate that would lead first to an extension of the statute of limitation for murder, and eventually to its abolition. It also invited critical scrutiny from abroad. Political leaders in Bonn faced especially persistent pressure from the Communist regime in rival East Germany, which delighted in exposing the Nazi links of senior West German officials and attacking the country’s hesitant approach toward prosecuting Nazi criminals.

In May 1957, the East German regime released a list of “blood judges” who had served the Nazi regime and who were now employed in senior positions in West Germany. It was the start of a campaign that struck at what one scholar has described as the “Achilles heel” of West Germany’s efforts to punish Nazi crimes—the fact that so many of the judges presiding over these trials had served loyally under the Hitler regime. The initial list was quickly followed by revelations linking hundreds more West German judges to the Third Reich. The government in Bonn tried to brush off the criticism, but the pressure—both at home and abroad—eventually became too great to ignore.

The first and arguably most important result of that pressure was an agreement between the eleven West German federal states to set up a small authority charged with investigating Nazi crimes. It was up and running in December 1958, just four months after the verdict of Ulm. The man in charge of the new institution was Erwin Schüle, who had served as the lead prosecutor in the Ulm trial. Energetic and resourceful (he was the first German prosecutor to access the vast files of the U.S.-run Berlin Document Center), Schüle had caused a stir with his final plea in the Einsatzgruppen trial.

His intervention, brief but powerful, urged Germans to reflect on their own moral failure during the Nazi era, and spoke of the “shame that we all feel.” He specifically did not exclude himself from that charge and used the pronoun “we” throughout his intervention. At one point he confessed that “all of us were too cowardly at the time.” Schüle proved to be an effective leader of the Zentrale Stelle during its early years, but the shame he expressed in the Ulm courthouse in 1958 was more deeply grounded in his own biography than he let on at the time. Schüle, it turned out, had himself been a member of the Sturmabteilung (SA), the Nazi paramilitary wing, and had joined the Nazi Party in 1937.

At first, he tried to dismiss the revelations, insisting that he had done nothing wrong. Facing mounting public pressure at home, and new accusations from authorities in the Soviet Union claiming he had been involved in the killing of civilians during fighting on the Eastern Front, Schüle offered his resignation in April 1966. He had become a political embarrassment, but also a symptom of a deeper malaise: in post-war West Germany, it seemed, even the Nazi hunters had a Nazi past.

__________________________________