Journal of Contemporary History Copyright ! 2010 The Author. Vol. 45(3), 628648. ISSN 0022-0094. DOI: 10.

1177/0022009410366558

Christian Goeschel

Suicide in Nazi Concentration Camps, 19339

Abstract Too often histories of the concentration camps tend to be ignorant of the wider political context of nazi repression and control. This article tries to overcome this problem. Combining legal, social and political history, it contributes to a more thorough understanding of the changing relationship between the camps as places of extra-legal terror and the judiciary, between nazi terror and the law. It argues that the conflict between the judiciary and the SS was not a conflict between good and evil, as existing accounts claim. Rather, it was a power struggle for jurisdiction over the camps. Concentration camp authorities covered up the murders of prisoners as suicides to prevent judicial investigations. This article also looks at actual suicides in the pre-war camps, to highlight individual inmates reactions to life within the camps. The article concludes that the history of the concentration camps needs to be firmly integrated into the history of nazi terror and the Third Reich. Keywords: concentration camps, judiciary, legal terror, murder, nazi terror, suicide Soon after the Third Reichs downfall in 1945, Walter Poller, a Social Democrat and a Buchenwald prisoner from December 1938 until May 1940, published his memoirs of Buchenwald, where he had been working as a prisoner clerk in the medical block. He remembered that prisoners who had supposedly hanged themselves in the camps latrine were not given a post-mortem by the camp doctor, who would only look at the corpse for a few seconds before certifying death by suicide. Once, Poller saw a man who had allegedly hanged himself lying on the dissecting table with a noose around his neck. His murderers, SS guards, had put a knot around his neck after he had died.1 Pollers memories of the SS practice of covering up the murders of prisoners as suicides highlight the fundamental difculty of examining and interpreting suicides within nazi concentration camps.
I should like to thank Moritz Fo llmer, Jessica Reinisch, Nikolaus Wachsmann, the anonymous referees and particularly Lucy Riall for valuable comments on an earlier draft of this article. I must also thank the AHRC and Birkbeck Colleges School of History, Classics and Archaeology for funding my research. 1 Walter Poller, Arztschreiber in Buchenwald: Bericht des Ha ftlings 996 aus Block 39 (Hamburg 1946), 924.

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But why was it that camp ofcials murdered many prisoners and covered up these deaths as suicides, effectively suiciding them? This questions legal aspects are crucial for a clearer understanding of the changing relationship between extra-legal terror and the judiciary as the nazi dictatorship evolved in the pre-war years. The concentration camps consolidation into a distinct socio-racial means of persecution and control was by no means smooth. In fact, the camps expansion was accompanied by ruptures and conict among various state and party institutions, especially between the SS and the judiciary.2 This article reassesses the intricate relationship between nazi terror and the legal system by studying suicide in the pre-war camps. Lothar Gruchmann, a legal historian, offered the rst, albeit cursory, account of the SS practice of suiciding camp prisoners in his massive 1988 monograph on the Reich Ministry of Justice, drawing upon ofcial legal documents. Gruchmann argued that the SS covered up the murders of camp prisoners as suicides because it lacked the legal powers to execute inmates until the outbreak of war in 1939. Yet Gruchmann had little to say about the people singled out for suiciding by the nazis. While Gruchmanns basic interpretation of the cover-up of murders as suicides seems plausible, his overall argument about the relationship between the judiciary and the SS is misleading. Gruchmann takes up a simplied version of Ernst Fraenkels 1941 classic interpretation of the Third Reich as a dual state, characterized by a conict between the good judiciary (the normative state) on the one hand and the evil SS and the Gestapo on the other (the prerogative state).3 In Gruchmanns view, legal ofcials, motivated by their commitment to due process, tried to combat the SSs increasingly successful attempts to turn the concentration camps into areas that were off limits for the judiciary. Yet Gruchmanns account tells us relatively little about the judiciarys collaboration with the SS.4 Johannes Tuchel, a German historian of the concentration camps, subscribes to Gruchmanns views. Tuchel even claims that the SS could run the camps completely at its own discretion from late 1935 onwards.5 In reality, matters were more complex. The conict between the SS and the judiciary was above all an institutional rivalry, in which the judiciary tried to assert its jurisdiction over the camps vis-a ` -vis the SS. This article builds on Nikolaus Wachsmanns recent work on legal terror in nazi Germany and offers a new perspective on the judiciarys responses to extra-legal terror in the concentration camps.6 The practice of suiciding also reveals the regimes
2 Jane Caplan, Introduction, in Gabriele Hertz, The Womens Camp in Moringen: A Memoir of Imprisonment in Germany, 19361937, ed. Jane Caplan (New York 2006), 155, at 12. 3 Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (New York 1941). ra Gu 4 Lothar Gruchmann, Justiz im Dritten Reich: Anpassung und Unterwerfung in der A rtner 19331940 (Munich 1988), 1124. 5 Johannes Tuchel, Konzentrationslager: Organisationsgeschichte und Funktion der Inspektion der Konzentrationslager 19341938 (Boppard am Rhein 1991), 307. 6 Nikolaus Wachsmann, Hitlers Prisons: Legal Terror in Nazi Germany (New Haven, CT, 2004), 37883.

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concerns over atrocity propaganda about the camps. Rather than admit the murders of camp prisoners, camp ofcials, concerned with Germanys image at home and abroad, preferred to place the blame on the murdered by suiciding them. But murders covered up as suicides were not the only story. This article also considers real suicides for the light they shed on living conditions in the camps. Ofcial documents on suicide, such as investigations, are sparse because the camp authorities, unlike the inmates, had no interest in documenting the misery inside the camps. For the same reason, there are no reliable statistics on suicides in the camps. Other documents on suicides, such as there are, raise some important epistemological issues because of the nazi cover-up of murders as suicides. Are these documents therefore about real suicides or covered-up killings? In the wake of the Reichstag re decree of 28 February 1933, nazi and state institutions set up concentration camps amidst an unprecedented storm of violence. Especially in the early months of the Third Reich, the nazis used extreme violence against their political enemies. They beat up and killed many people, especially communists and social democrats, whom the nazis had long fought during the Weimar Republic.7 Well over 100,000 people, chiey communists and social democrats, were held in protective custody in more than a hundred early camps in 1933.8 Prisoners are generally more likely to commit suicide than others. Recent research shows that in late twentieth-century Britain, for example, penal institutions recorded higher suicide rates than other environments. Inmates, especially in their rst week of imprisonment, are often desperate about their lack of freedom and the strict rules and discipline.9 Many concentration camp prisoners killed themselves, contrary to the claims of existing studies that there were few suicides in the concentration camps. The sociologist Wolfgang Sofsky, for example, suggests that there were relatively few suicide attempts in the concentration camps.10 The German psychiatrist Thomas Bronisch conrmed this view, arguing that, on the basis of survivors memoirs, under extreme lifethreatening conditions, there is a tremendous increase in the self-preservation instinct.11 Bronisch also emphasizes the depersonalization of the inmates,

7 Richard J. Evans, The Coming of the Third Reich (London 2003), 31149. 8 Klaus Drobisch and Gu nther Wieland, System der NS-Konzentrationslager 19331939 (Berlin 1993), 715; for numbers see also Christian Goeschel and Nikolaus Wachsmann (eds), Before the Holocaust: Documents from the Nazi Camps, 19331939 (forthcoming), introduction. 9 Martin McHugh and Louisa Snow, Suicide Prevention: Policing and Practice, in Graham Towl, Louisa Snow and Martin McHugh (eds), Suicide in Prisons (Leicester 2000), 125, at 5. 10 Wolfgang Sofsky, Die Ordnung des Terrors: Das Konzentrationslager (Frankfurt am Main 1993), 73. 11 Thomas Bronisch, Suicidality in German concentration camps, Archives of Suicide Research 2 (1996), 12944, at 142.

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which allegedly did not allow them to contemplate suicide.12 All these accounts overwhelmingly focus on the wartime camps and do not consider any differences in suicide patterns as the camp system evolved. Suicide was a widespread phenomenon in nazi Germany amongst those politically and racially persecuted by the regime.13 It is not surprising, therefore, that many concentration camp prisoners committed suicide in sheer despair over their brutal treatment by the nazis. Uncertainty as to whether they would ever be released was a common cause of despair amongst prisoners.14 Suicides were overwhelmingly male, reecting the fact that the vast majority of concentration camp prisoners were men.15 In the Saxon Hohnstein camp, set in a castle on a rock overlooking the Elbe valley, several inmates who were unable to bear torture, humiliation and punishments are said to have jumped to their deaths in 1933.16 Sachsenburg, another Saxon camp, witnessed at least 35 suicide attempts between August 1934 and late 1935, according to a survivors estimate.17 Other camps too displayed very high suicide levels. In the Kemna camp, set up by the SA in a suburb of Wuppertal in the Ruhr Valley in the summer of 1933, there were at least 25 suicide attempts before the camps dissolution in January 1934, according to the Wuppertal state prosecutors investigation of Kemna atrocities carried out in 1934. Real numbers must have been higher still. But did these people really try to kill themselves, or did the nazis attempt to suicide them? Kemna prisoners were subjected to constant beatings and a particularly cruel form of torture: SA guards forced detainees to eat salty herrings covered with castor oil, which came to be known as Kemna sandwiches (Kemnaschnitten). Karl Ibach, a former Kemna prisoner, later remembered in an eyewitness account, published after the 1948 trial of Kemna camp ofcials: The tormented were tortured in such a way that they preferred to take their lives to more torture. According to Ibach, there were so many suicide attempts that the camp authorities conscated all bread knives and razor blades. Kemna guards also encouraged inmates to kill themselves, but Ibach doubted whether the guards requests to inmates to commit suicide were serious. When prisoners accepted rope from the guards to hang themselves, the guards

12 Ibid., 13940. 13 For a survey, see Christian Goeschel, Suicide in Nazi Germany (Oxford 2009), esp. 56148. 14 Wachsmann, Hitlers Prisons, op. cit., 1367. 15 On gender and the concentration camps, see, for example, Jane Caplan, Gabriele Herz: Schutzhaft im Frauen-Konzentrationslager Moringen 19361937, in Gisela Bock (ed.), Genozid und Geschlecht: Ju dische Frauen im nationalsozialistischen Lagersystem (Frankfurt am Main 2005), 2243. 16 Carina Baganz, Erziehung zur Volksgemeinschaft: Die fru hen Konzentrationslager in Sachsen 193334/37 (Berlin 2005), 194. 17 Ibid., 2745.

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shouted: This would be easy for you. You wont have it that easy. Well kill you piece by piece! And the tortures began again.18 There was no general SS policy on inmate suicide. Yet the SS increasingly tried to prevent inmates from committing suicide to maintain their total control over the lives of inmates. This was the case in Sachsenhausen. Upon his arrival at the Sachsenhausen camp in November 1936, the communist Harry Naujoks saw a failed suicide by an alleged habitual criminal, lying in a small room next to the camp doctors surgery. He had tried to hang himself. The camp doctor refused to treat him, so he died shortly thereafter. Naujoks later discovered that the Sachsenhausen camp SS punished suicide attempts with 25 lashes and harsh arrest. Given that failed suicides did not receive any medical treatment, this came close to a death sentence.19 However, SS policy on inmate suicide was overall arbitrary at this time. According to reports of agents of the SPD in exile, there were between six and seven suicide attempts per week in 1937 in Dachau. These gures suggest that there were over 300 suicide attempts per year in Dachau alone. Not all of these attempts were successful, because fellow prisoners and SS guards often stopped suicidal inmates from killing themselves. A former communist Reichstag deputys brother, in Dachau since 1933, expected to be released from Dachau shortly before Christmas 1936 after camp guards promises. He was not released, and in early 1937, he tried to break his skull with a hoe. He was stopped by an SS guard. Just an hour later, he attempted to hang himself with his braces. This time a fellow prisoner stopped him. Finally, he slit his wrists with a scrap of metal. He was found lying dead in a pool of his own blood.20 As the camps populations increased in 19378, with the arrests of criminals, so-called asocials and Jews, suicide levels must have increased too. Some historians even suggest that suicide levels in Sachsenhausen rose from seven a month in 1937 to 33 a month by 1938, although these numbers are not reliable because the SS covered up murders as suicides. Still, Sachsenhausens suicide rates were lower than Dachaus because of the Sachsenhausen camp SSs brutal policy of punishing suicide attempts.21 The wave of mass arrests in the wake of Kristallnacht saw many suicides within the camps, probably at least a hundred.22 In the pogroms immediate aftermath, the Gestapo arrested up to 26,000 Jewish men across Germany and
18 Markus Meckl, Wuppertal-Kemna, in Wolfgang Benz and Barbara Distel (eds), Der Ort des Terrors: Geschichte der nationalsozialistischen Konzentrationslager, Band 2, Fru he Lager, Dachau, Emslandlager (Munich 2006), 2204, at 222. For an eyewitness account see Karl Ibach, Kemna: Wuppertaler Lager der SA 1933 (Wuppertal 1948), 735. For background of the Kemna trials see Ju rgen Zarusky, Juristische Aufarbeitung der KZ-Verbrechen, in Benz and Distel (eds), Der Ort des Terrors, I, 34562, at 346, 352. 19 Harry Naujoks, Mein Leben im KZ Sachsenhausen: Erinnerungen des ehemaligen Lagera ltesten, 19361942 (Frankfurt am Main 1987), 35. 20 Klaus Behnken (ed.), Deutschland-Berichte der Sopade (Frankfurt am Main 1980), IV, 697; Goeschel, Suicide, op. cit., 78. 21 Cf. Drobisch and Wieland, System der NS-Konzentrationslager, op. cit., 302. 22 On suicides after the pogrom see Goeschel, Suicide, op. cit., 1013.

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sent them to concentration camps.23 Conditions were chaotic, as the camp authorities were not prepared for so many new inmates and there was not enough food or accommodation for them. Also, guards treated the Jews extremely brutally. Most Jewish inmates, including those who had seen active service in the rst world war, were shocked by the sudden arrests and the terrible conditions. The pogrom and the mass arrests clearly conrmed that Jewish life would no longer be possible in nazi Germany. In this bleak context, many Jewish inmates committed suicide. In Buchenwald, many inmates ran into the barbed wire or exposed themselves to the guards ring at them, as one survivor later remembered.24 The many suicides created extra administrative work for the SS personnel, prompting the roll call ofcer to issue the following order over the camps tannoy: If more Jews string themselves up, will they kindly put a slip of paper with their name in their pocket, so that we know who it is.25 In Dachau, camp commandant Hans Loritz issued an order shortly after Kristallnacht: If a prisoner tries to kill himself, he insisted, it is prohibited on pain of punishment to stop him. Not everyone obeyed Loritzs order. Inmates often tried to save suicidal fellow prisoners. And some guards, for whatever reason, also prevented prisoners from committing suicide. In late 1939, a desperate Dachau Jewish prisoner walked towards the electried perimeter fence, hoping that guards would shoot him. According to a Jewish inmates testimony, collected by agents of the exiled Social Democratic Party in July 1939, an SS shouted at him to turn around. The man survived.26 Suicide by exposing oneself to guard re or by electrocution at the perimeter fence was common in other camps too. Forty-year-old Hans Berger, arrested in Buchenwald after Kristallnacht, witnessed many such suicides:
Entering the area of death [i.e. the area of the electried fence and the barbed wire] is suicide and is also seen as such by the camp commanders. Many have made use of it, and when one heard two or three shots of the submachine guns at nights, one could be sure to nd a corpse in the area of death the next morning.27

Yet, despite the tendency to punish individual suicide attempts, SS attitudes towards inmate suicide seem to have been largely arbitrary before the war.
23 Benz, Der November-Pogrom, in idem (ed.), Die Juden in Deutschland, 499544, at 528; see also Michael Wildt, Violence against Jews in Germany, 19331939, in David Bankier (ed.), Probing the Depths of German Antisemitism: German Society and the Persecution of the Jews, 19331941 (New York 2000), 181212, at 2024; Richard J. Evans, The Third Reich in Power 19331939 (London 2005), 591. 24 Wiener Library London, P.II.d.240, Memoirs of Rabbi Dr. G. Wilke, 1957. 25 Quoted in Eugen Kogon, The Theory and Practice of Hell: The German Concentration Camps and the System Behind Them (London 1950), 164. 26 Klaus Behnken (ed.), Deutschland-Berichte, op. cit., VI, 935. 27 Memoirs of Hans Berger (1939), printed in Monika Richarz (ed.), Ju disches Leben in Deutschland: Selbstzeugnisse zur Sozialgeschichte, 19181945 (Stuttgart 1982), 330. On Buchenwald, see Eugen Kogon, Der SS-Staat: Das System der deutschen Konzentrationslager (Munich 1974), 20832; Gedenksta tte Buchenwald (ed.), Konzentrationslager Buchenwald 19371945: Begleitbuch zur sta ndigen historischen Ausstellung (Go ttingen 1999).

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Once the war had started, the SS punished all suicide attempts, because suicide was an expression of self-determination that ran counter to the nazis total claim over the lives and bodies of the inmates.28 But there was another aspect of suicide in the concentration camps to which we must now come: the suiciding of prisoners. In the early months of the Third Reich, camp guards often encouraged prisoners to kill themselves, even bringing them rope with which to do it. In Germany, death by hanging was a dishonourable execution, traditionally reserved for criminals, so giving prisoners rope with which to hang themselves was an act of humiliation and mental torture.29 At Dachau, the rst SS-run concentration camp, set up near Munich in March 1933, Hans Steinbrenner, a SS guard, encouraged several prisoners to commit suicide. He and the Dachau SS were determined to kill Hans Beimler, a leading Bavarian communist and former Reichstag deputy. According to Beimlers own account, rst published in Moscow in 1933 and therefore probably rounded up for effect, the SS threatened to kill him if he did not commit suicide. Upon his arrival at Dachau in April 1933, Beimler, like the other prisoners, underwent the brutal admissions procedures, which included beatings and humiliation by SS guards. The guards, many of whom were from Dachau and its vicinity, had long known Beimler and harboured a particularly strong animosity against him. Unlike the other new prisoners, Beimler was not assigned to a barrack with other prisoners, but immediately put into solitary connement in the bunker. Here Steinbrenner and other SS guards beat him unconscious several times. Beimler claimed that a guard gave him a six-foot rope as thick as my nger, and told me to hang it on the little turncock of the water pipe.30 Beimler refused to kill himself, although he was terried by the prospect of being murdered by the SS. Steinbrenner and Hilmar Wa ckerle, the camp commandant, repeatedly urged him to commit suicide, giving him a bread-knife and tying a noose for him. Beimler knew that if he killed himself, the nazis would deny responsibility for his death and brand him a weakling who was too cowardly to stand up for his communist activities. In the end, Beimler escaped unnoticed by the SS guards.31 For many communists, the refusal to commit suicide under SS pressure was an act of strength, reecting their commitment to resisting the nazis.32 Moreover, many communists, particularly in the nazi regimes early phase in 1933, expected that the nazi regime would not last long. Beimlers case was not an isolated one. On 25 January 1934, The Timess Munich correspondent
28 Sofsky, Die Ordnung des Terrors, op. cit., 73. 29 Richard J. Evans, Rituale der Vergeltung: Die Todesstrafe in der deutschen Geschichte 1532 1987 (Berlin 2001), 748. 30 Hans Beimler, Four Weeks in the Hands of Hitlers Hell Hounds: The Nazi Murder Camp of Dachau (New York 1933), 25, 28, 40. 31 For context, see Hans-Gu nge des nter Richardi, Die Schule der Gewalt: Die Anfa Konzentrationslagers Dachau 19331934. Ein dokumentarischer Bericht (Munich 1983), 1720. 32 Allan Merson, Communist Resistance in Nazi Germany (London 1985), 1389.

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conrmed rumours that in the cells of certain prisoners at Dachau ropes and sharpened knives had been placed in order to induce the prisoners to commit suicide.33 In the early camps, established in 1933 and 1934, hundreds of inmates were killed or died from nazi torture. The nazis could not simply kill prisoners without risking legal prosecution, which would have revealed the savage brutality of camp guards to a wider public in Germany and abroad. In many cases, therefore, senior camp ofcials covered up the killings of prisoners as suicides or claimed that inmates had been shot while trying to escape (auf der Flucht erschossen) to deny responsibility and prevent judicial investigations.34 Another reason for camp ofcials to cover up murders as suicides was the nazi concern for public opinion. Many law-abiding Germans welcomed the nazi clampdown on communists, but probably not on the social democrats, who still had wide support: they had received seven million votes in the March 1933 Reichstag elections, despite the nazi onslaught against the Left.35 The support of law-abiding Germans, concerned with due legal process and maintaining law and order, was important for the regime in its rst months in power, between Hitlers appointment as Chancellor on 20 January 1933 and President Hindenburgs death in August 1934, which marked the consolidation of nazi rule. Terror alone would not win over the majority of law-abiding Germans. The nazis were not hesitant to admit their unprecedented wave of terror, though. As Joseph Goebbels said in his rst press conference as Reich propaganda minister on 15 March 1933, just days after the Reichstag elections where the nazis and the nationalconservative German National Peoples Party (DNVP) had received just under 52 per cent of the vote, the nazi regime would not be content with 52 per cent behind it and with terrorizing the remaining 48 per cent.36 But why did the judiciary investigate camp guards for the suiciding of prisoners? The overwhelming majority of judicial ofcials had already been in ofce in the Weimar Republic, where most of them had been sympathetic to the right and sometimes even to the nazis. They hoped that the nazi regime would back them in their efforts to implement authoritarian law and restore the states authority, which had purportedly been

33 For similar cases at Dachau see Stanislav Zamecnik, Das fru he Konzentrationslager Dachau, in Wolfgang Benz and Barbara Distel, Terror ohne System: Die ersten Konzentrationslager im Nationalsozialismus 19331935 (Berlin 2001), 1339, at 18; The Times, 25 January 1934. 34 Evans, Rituale, op. cit., 81617; Drobisch and Wieland, System der NS-Konzentrationslager, op. cit., 3023. 35 Evans, The Coming of the Third Reich, op. cit., 333. 36 Quoted in Jeremy Noakes and Geoffrey Pridham (eds), Nazism 19191945: A Documentary Reader (Exeter 2000), II, 1867, at 187.

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undermined by the various Weimar governments.37 The judiciary therefore happily co-operated with the nazis in the process of undermining the rule of law, for example in the amnesties of March 1933 and July 1934 which exonerated nazis from prosecution.38 Yet, despite all their enthusiasm for the nazis, the judiciary were keen to retain legal formalism and, above all, due legal process.39 Legal ofcials insisted on their right to investigate dubious cases of death in the pre-war camps, including alleged suicides, not because they opposed the nazis, but rather because they wanted to maintain their own power of jurisdiction over the SS and the concentration camps. State prosecutors remained formally in charge of investigating crimes perpetrated by camp guards. In early 1933, Munich state prosecutors Carl Wintersberger and Josef Hartinger, concerned with due legal process and the judiciarys powers, investigated dubious deaths at Dachau. After earlier investigations (three men had been shot while allegedly trying to escape in April 1933), the Munich state prosecutor received the news on 16 May 1933 that the businessman Louis Schloss, a Jew, had hanged himself with his braces. The prosecutor immediately ordered Schlosss autopsy. It revealed that Schloss had been brutally beaten to death. The murderers, SS guards, had put a noose around his neck after his death to cover up this murder. The camp doctor and the camps leadership classied Schloss death as suicide. A suspicious Hartinger charged Wa ckerle, the camp doctor and the camp administrator with being accessories to the murder of prisoners on 1 June 1933.40 In the meantime, another dubious death was reported. On the night of 25 May 1933, Dachau guards found the Munich businessman Sebastian Nefzger dead, lying in a pool of his own blood. Nefzger, an ex-nazi, had been discharged from the party on accusations of treason, so the SS guards strongly resented him.41 The camp administration waited two days before they reported his death to the Dachau court and the Munich state prosecutor, claiming that an autopsy was unnecessary, given that the camp doctor had certied suicide.42 The state
37 Klaus Marxen, Strafjustiz im Nationalsozialismus: Vorschla ge fu r eine Erweiterung der historischen Perspektive, in Bernhard Diestelkamp and Michael Stolleis (eds), Justizalltag im Dritten Reich (Frankfurt am Main 1988), 10111; Anthony McElligott, Sentencing towards the Fu hrer? The Judiciary in the Third Reich, in idem and Tim Kirk (eds), Working towards the Fu hrer: Essays in Honour of Sir Ian Kershaw (Manchester 2003), 15385, at 154. For a good survey, see Ralph Angermund, Deutsche Richterschaft 19191945: Krisenerfahrung, Illusion, politische Rechtssprechung (Frankfurt am Main 1990). 38 Richard J. Evans, The Third Reich in Power (New York 2005), 73. 39 Bundesminister der Justiz (ed.), Im Namen des Deutschen Volkes: Justiz und Nationalsozialismus (Cologne 1989), 6894. 40 Staatsanwaltschaft bei dem Landgerichte Mu nchen II an den Herrn Generalstaatsanwalt bei dem Oberlandesgerichte Mu nchen, 1 June 1933, in Der Prozess gegen die Hauptkriegsverbrecher vor dem Internationalen Milita rgerichtshof Nu rnberg 14. November 19451. Oktober 1946 (Nuremberg 1948), XXVI, ND-644-PS, 17486; Gruchmann, Justiz im Dritten Reich, op. cit., 635; Richardi, Die Schule der Gewalt, op. cit., 88115. 41 Archiv Dachau, No. 554, Kasimir Dittenhuber: Der Weg in den Abgrund. Ich war Hitlers Gefangener. Bl. 8. 42 Staatsarchiv Munich, Staatsanwaltschaften 7014, Beglaubigte Abschrift, 26 May 1933.

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prosecutor, suspicious of this verdict, ordered a post-mortem, revealing that Nefzger had been strangled. After Nefzgers death, SS guards had cut Nefzgers wrists to conceal the murder.43 Wintersberger passed on these investigations to the Bavarian Ministry of Justice, run by Hans Frank, Hitlers former lawyer. Wintersberger also forwarded to Frank a copy of the May 1933 Dachau camp regulations. According to these regulations, a camp court, consisting of the camp commandant and other SS ofcers, had the power to sentence any prisoner to death who disobeyed these draconian rules.44 These regulations were illegal, because only the judiciary had the authority to pass death sentences.45 Frank, a nazi concerned with maintaining due legal process and his own position vis-a ` -vis the SS, insisted that these suicides and the camp regulations must be discussed at the Bavarian cabinets next meeting. But Frank was rebuffed by the Bavarian Interior Minister Adolf Wagner, nominally Heinrich Himmlers superior. Himmler, Reich Leader of the SS and ultimately in charge of the SS-run Dachau camp, was at the same time Munich Police President, as well as head of the Bavarian Political Police and thereby part of the Bavarian executive. Because of his dual role, it was not difcult for Himmler to block the investigations. Without the polices support, the judiciary was powerless to investigate the Dachau killings. Himmler wanted to avoid an open confrontation with the judiciary. Before the SS purge of the SA leadership in the summer of 1934, it was nominally still subordinate to the SA, so the SSs position was not yet consolidated. Himmler therefore sacked Wa ckerle. No camp ofcial was ever sentenced for the murders, although it was clear that SS guards had killed these inmates.46 It would be some time until the power struggle between the judiciary and the SS over the jurisdiction of the camps was resolved. In Dachau, the practice of suiciding prisoners continued. On the night of 17/18 October 1933, Wilhelm Franz, a communist, and Dr Delvin Katz were found hanged in their isolation cells. Fellow inmates later reported that the SS guards particularly hated them, especially Katz. Not only was Katz Jewish; he was a medical doctor who had also secretly treated inmates who had been tortured by the SS. The SS accused Franz and Dr Katz of smuggling out information (Kassiberschmuggel), a capital offence under the new camp regulations enacted by Theodor Eicke, Dachaus new commandant, on 1 October 1933.47 Katz and Franz were detained in isolation cells, where the SS killed them.48 Predictably, the
43 Der Prozess gegen die Hauptkriegsverbrecher, XXVI, ND-645-PS, 1879. See also BAB, R 3001/21167, Bl. 245. 44 Der Prozess gegen die Hauptkriegsverbrecher, XXVI, ND-922-PS, 610. 45 Evans, Rituale, op. cit., 81617. 46 Gruchmann, Justiz im Dritten Reich, op. cit., 6389, 644. Der Prozess gegen die Hauptkriegsverbrecher, XXVI, ND-926-D and ND-930-D, 4159; Richardi, Die Schule der Gewalt, op. cit., 113; see also Evans, Rituale, op. cit., 816. 47 For a copy of the same regulations, implemented at Esterwegen from 1 August 1934, see United States Holocaust Memorial Museum, RG-11.001 M.20, Reel 91, Fond 1367, Opis 2, Folder 19, Disziplinar- und Strafordnung fu r das Gefangenenlager Esterwegen vom 1. August 1934. 48 The Yellow Spot: The Outlawing of Half a Million Human Beings (London 1936), 2634; Gruchmann, Justiz im Dritten Reich, op. cit., 6412.

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camp authorities classied these deaths as suicides. The SS claimed that Franz had hanged himself with his belt and Katz with his braces. State prosecutor Wintersberger, not prepared to accept these illegal SS executions, immediately started an investigation. When he viewed the cells, the corpses had already been removed to a shed and the belt and braces with which Franz and Katz had allegedly killed themselves had disappeared. A post-mortem revealed that Franz and Katz had been strangled, probably by SS guards. Himmler insisted that the investigations must be stopped, expressing concern that the SSs public image would suffer otherwise. Bavarian Minister of Justice Frank pursued the case further. But Himmler referred the investigation team to Ernst Ro hm, Chief of the SA, and at that time still in charge of Himmler and the SS. Ro hm did not even bother to speak to the investigation team. He told Himmler to pass on a message to the investigation team and Frank. In it, Ro hm, concerned with the public impact of legal investigations into SS terror within the Dachau camp, forbade legal ofcials to carry out investigations inside Dachau, a camp for prisoners in protective custody who are detained for political reasons. Ro hm promised that he would ask Hitler to reach a nal verdict about the legal investigations.49 Ro hm and Himmler did indeed consult Hitler over this matter, but Hitler did not give them clear instructions on how to proceed. Hitler knew too well that the SS would eventually prevail over the judiciary. For Hitler and Himmler, the judiciary was ineffective and completely inadequate for the implementation of the Third Reichs racial and social agenda because it was based upon oldfashioned laws and due legal process.50 Once again, Himmlers Bavarian Political Police refused to co-operate with the legal investigations, so the state prosecutor had to close the case in September 1934. This nazi victory over the judiciary was a signicant step towards the ofcial recognition of the extra-legal SS system of unlimited terror.51 The SS also covered up murders as suicide in other camps. Take the incidents in the Hamburg-Fuhlsbu ttel camp, situated on the site of a penitentiary.52 Here, SS-Sturmfu hrer Willi Dusenscho n ordered SA and SS men savagely to mistreat inmates. Prisoners were beaten with whips, ox-goads and legs of chairs, and sometimes even fettered for days to iron grills. Fritz Solmitz, a journalist and social democratic activist from Lu beck, was found hanged on 19 September 1933 in a Fuhlsbu ttel isolation cell. The SS claimed that Solmitz, a Jew, committed suicide by hanging. A suicide note was found in his cell, apparently faked by SS guards.53A prolic writer, even under nazi torture,
49 Der Prozess gegen die Hauptkriegsverbrecher vor dem Internationalen Milita rgerichtshof Nu rnberg 14. November 19451. Oktober 1946 (Nuremberg 1948), XXXVI, ND-926-PS, 545. 50 Evans, The Third Reich in Power, op. cit., 723. 51 On background see Gruchmann, Justiz im Dritten Reich, op. cit., 645. 52 See Herbert Diercks, Fuhlsbu ttel das Konzentrationslager in der Verantwortung der Hamburger Justiz, in Wolfgang Benz and Barbara Distel (eds), Terror ohne System, op. cit., 261308, at 273. 53 Christian Ju mpfer und rgens, Fritz Solmitz: Kommunalpolitiker, Journalist, Widerstandska NS-Verfolgter aus Lu beck (Lu beck undated), 76. Gruchmann, Justiz im Dritten Reich, op. cit., 375, claims that Solmitz killed himself without presenting any evidence.

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Solmitz jotted down his experiences of his time in the isolation cell until the day before his death. Probably aware that the camp guards would murder him, he wrote these remarkable notes on cigarette paper. He hid the notes in his pocket watch, which was handed over to his widow after his death. On his rst day in solitary connement, Solmitz was repeatedly ogged by guards, on the commandants orders. He did not receive any food and was denied medical treatment. On the night before his death, a detachment of guards entered his cell, announcing that he would be beaten again on the following day. One guard threatened: Hang yourself! Then you wont receive any beatings.54 One witness at a 1961 trial against Dusenscho n claimed that the ofcial autopsy of Solmitzs body, ordered by the state prosecutor in 1933, had revealed that Solmitz had died from exsanguinations following the severe beatings he received. Solmitz was clearly murdered.55 After the Ro hm purge on 30 June 1934, when top nazis, led by Hitler, purged the SA and members of the conservative e lite, the regime, backed by the judiciary, passed the Amnesty Law of 7 August 1934, clearing nazis, including camp ofcials, who had killed or maltreated supposed enemies of the state, of any charges. Legal investigations against nazi thugs were stopped and nazis already sentenced were exonerated. Some cases were explicitly exempt from this amnesty due to the efforts of Reich Minister of Justice Franz Gu rtner, a national conservative. He was concerned that cases of sadistic torture and murder in concentration camps would reect badly on the regime. Both the judiciary and the nazis wanted to maintain the myth that they had restored order, trying to appeal to law-abiding Germans.56 In some cases judges sentenced camp ofcials for abusing and killing prisoners. In May 1935, a Dresden court sentenced the commandant and 22 guards of the Saxon Hohnstein camp to prison terms for torturing inmates. Nazi ofcials, including the Saxon Gauleiter Martin Mutschmann, demanded their immediate release and acquittal, bullying the court. The case also reached Hitlers desk. He decided in late 1935 that the guards must be freed and amnestied, a decision reecting Hitlers disregard for the judiciary and his fundamental belief that he and the regime stood above the law.57 In another case, judicial ofcials did not put concentration camp guards on trial. The Wuppertal state prosecutor began to investigate Kemnas director and six guards in March 1934 for the systematic abuse of prisoners. Neither of the accused was ever put on trial because of direct nazi pressure. In August 1934 Rudolf Hess, Hitlers deputy, concerned about the impact of this case on public opinion, cashiered the guards from the nazi party. Eventually, the NSDAPs supreme party court overturned Hesss decision and merely issued a warning to ve guards, including the camp director, because they had been overzealous in their service for the nazi cause.
54 55 56 57 cit., Quoted in Ju rgens, Fritz Solmitz, op. cit., 87. Ju rgens, Fritz Solmitz, op. cit., 76. Drobisch and Wieland, System der NS-Konzentrationslager, op. cit., 21727. Gruchmann, Justiz im Dritten Reich, op. cit., 36974; Zarusky, Juristische Aufarbeitung, op. 346.

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Two guards were completely acquitted. The nazi party supreme court dismissed the Wuppertal court proceedings because they were allegedly based upon completely exaggerated and partly dubious testimony of communist activists, whose resistance had to be crushed lest they attack the nazi regime. Eventually, the judiciary had to accept this verdict and the fact that it had been overturned once again by the nazis.58 Yet the SS continued to suicide prisoners in the ongoing power struggle between the judiciary and the SS. Ferdinand B., a metalworker, was taken to the Fuhlsbu ttel camp on 13 September 1934. Upon arrival, B. was immediately taken into strictest solitary connement and, according to a police record, handcuffed with his hands behind him because he was allegedly suicidal. The next morning, a guard handcuffed B. in front of his body so that he could have breakfast. An hour later a guard found B. dead. Fuhlsbu ttel ofcials reported to the Hamburg Gestapo that B. had hanged himself with a handkerchief which he had attached to a ventilation shaft.59 This version was suspicious, not least because B. was still handcuffed when he hanged himself. In a memorandum of 14 September, a Hamburg Gestapo ofcial noted that B. had been beaten up during an interrogation and that B.s corpse must be cremated immediately to prevent his relatives or the state prosecutor from looking at the torture marks. This practice was the result of a secret agreement between the Hamburg Gestapo, under Himmlers control since November 1933, and Hamburg Justice Senator Curt Rothenberger, later to become state secretary in the Reich Ministry of Justice. According to this agreement, corpses of Fuhlsbu ttel inmates who had allegedly committed suicide in protective custody were to be cremated immediately.60 This practice was illegal, as it was in breach of paragraph 159 of the code of criminal procedure (Strafprozeordnung), which prescribed that the state prosecutor investigate dubious cases of death.61 This agreement indicates that the SS and the judiciary often collaborated very closely, contrary to Gruchmanns claim that the relationship between the SS and the judiciary is best understood in terms of conict and tension.62

58 Bundesarchiv Berlin (hereinafter BAB), NS 36/14, Nationalsozialistische Deutsche Arbeiterpartei: Oberstes Parteigericht, Beschluss, 1 April 1935; see also the camps official health statistics Hauptstaatsarchiv Du sseldorf, Gerichte Rep. 29, Nr. 303, Krankenbuch Kemna. On the Kemna investigations see also Gruchmann, Justiz im Dritten Reich, op. cit., 35160. 59 Staatsarchiv Nu rnberg, KV-Anklage, NG-2489, Bl. 1: Konzentrationslager Fuhlsbu ttel an die Staatspolizei Hamburg, 14 September 1934. Ibid., Bl. 3: Fuhlsbu ttel, den 14 September 1934. 60 On background, see Werner Johe, Institutionelle Gleichschaltung in Hamburg 1933: Freiheit des Individuums oder Sicherheit und Schutz der Gemeinschaft?, in Ursula Bu ttner and Werner Jochmann (eds), Zwischen Demokratie und Diktatur: Nationalsozialistische Machtaneignung in Hamburg Tendenzen und Reaktionen in Europa (Hamburg 1984), 6690, at 89. 61 BAB, R 3001/21056, Bl. 401: Diensttagebuch, 16 May 1935. 62 Diemut Majer, Justiz und Polizei im Dritten Reich, in Ralf Dreier and Wolfgang Sellert (eds), Recht und Justiz im Dritten Reich (Frankfurt am Main 1989), 13651, at 143; cf. Gruchmann, Justiz im Dritten Reich, op. cit.

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Dr Reuter, an ambitious senior state prosecutor (Oberstaatsanwalt), disclosed this agreement in September 1934 when a Hamburg Gestapo ofcer, apparently by mistake, requested Reuters permission for B.s cremation.63 Reuter had close connections to the nazi party, which expected lawyers like him to act in favour of the nazi party, thereby carrying out the Fu hrers will.64 Yet Reuter, annoyed about the fact that he had not been promoted after the nazi seizure of power, refused to permit the cremation. He was suspicious of the Gestapos version of B.s death. On 17 September, he seized B.s corpse and the handkerchief with which B. had allegedly hanged himself and ordered an autopsy.65 The ofcial autopsy arrived promptly, revealing that B. probably died because of hanging.66 Anxious to cultivate good relations with the nazis, the doctor carrying out the post-mortem wrote a fairly inconclusive report which failed to clarify who had hanged B. Reuter, unhappy with this report, commissioned another autopsy, which was carried out by the same doctor. It revealed that B. had killed himself. Reuter opened proceedings against Dusenscho n and other Fuhlsbu ttel ofcials for this suicide and other killings in the Fuhlsbu ttel camp. The Hamburg Reichsstatthalter and Gauleiter, Karl Kaufmann, ultimately in charge of the Hamburg judiciary, suspended Reuter in October 1934. Kaufmann insisted that Dusenscho n must not be tried, following Hitlers Amnesty Law of 7 August 1934. The Hamburg general state prosecutor, Reuters superior, shelved the case.67 An angry Reuter complained about Kaufmanns decision to Walter Buch, chief of the nazi partys supreme court. Buch asked Himmler, Dusenscho ns SS superior, to punish Dusenscho n. Yet Himmler maintained that the judiciary had to keep its nose out of the concentration camps and rehabilitated Dusenscho n. This prompted a furious Reuter to write to Buch again on 8 February 1935. He hoped Buch would help to reinstall him. In his surprisingly open letter, he highlighted the cover-up of suicides as murders:
When I am taken to a concentration camp and they beat me to death. . . . then they quickly put a noose around my neck . . . so that there is a strangulation mark. And my wife receives the message that her husband, apparently aware of his guilt, has nished his life by suicide. The [subordinate] institutions responsible for the beating to death nd a physician who, based on his diagnosis of the strangulation mark, issues a death certicate, claiming that the cause of death is apparently suicide by hanging. Those who die in the concentration camp are cremated if suicide has been established, thus circumventing the legally prescribed autopsy etc. Everything happens with the Reichsstatthalters full knowledge and 63 Staatsarchiv Nu rnberg, KV-Anklage, NG-2489, Bl. 5: An die Staatsanwaltschaft Hamburg, 17 September 1934. 64 McElligott, Sentencing towards the Fu stlein, hrer?, op. cit., 158. On Reuter see Klaus Ba Vom hanseatischen Richtertum zum nationalsozialistischen Justizverbrechen: Zur Person und Ta r Fu hrer, Volk tigkeit Curt Rothenbergers 18961959, in Justizbeho rde Hamburg (ed.), Fu und Vaterland. . .: Hamburger Justiz im Nationalsozialismus (Hamburg 1992), 74145, at 99 100. 65 Staatsarchiv Nu rnberg, KV-Protokolle, NG-2489, Bl. 1416: Der Generalstaatsanwalt an die Landesjustizverwaltung, 17 September 1934. 66 Ibid., Bl. 21. 67 Ibid., Bl. 26: Der Generalstaatsanwalt, 2 November 1934.

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sometimes even at his request and under his pressure who wants an amnesty in such cases, thereby being at least complicit. Isnt that an impossible situation, isnt that a situation which is not worthy of a Rechtsstaat?68

The state prosecutor was not readmitted to his old job and ended up as a judge in Cologne. The Fuhlsbu ttel case revealed that the judiciary was unable to investigate illegal killings, covered up as suicides, within the camps because powerful party ofcials blocked them even before the complete centralization of the judicial systems of the individual German states under the Reich Ministry of Justice in 1935.69 There must have been many similar cases of camp authorities suiciding prisoners here and elsewhere in Germany. Yet the SS continued to cover up murders as suicides, as it still lacked the legal powers to execute inmates, because Hitler and other leading nazis, concerned with the support of law-abiding Germans, felt unable ofcially to legalize executions within the concentration camps. Above all, Hitler, Himmler and the SS probably saw no need for this legalization of SS killings in the camps because they did not want their power to be limited by an ineffective law that would soon be overridden by the regimes progressive radicalization.70 In the meantime, the remaining SS concentration camps were put under central SS control. Theodor Eicke, inspector of the concentration camps since the summer of 1934, and other SS ofcials were concerned that the judiciary still had the power, at least formally, to investigate murder and maltreatment in the camps. In May 1935, Eicke issued a secret decree to all camp commandants: all dubious deaths of camp prisoners must be reported to the Reich leader SS and the Gestapo. With this new regulation in place, Eicke hoped that the judiciary would stop investigating suicides of camp inmates.71 Nevertheless, the SS continued to murder inmates and conceal their deaths as suicides, though not in the high numbers of 1933 and 1934, because inmate numbers had dropped sharply after 1934 when political repression was increasingly transferred from the concentration camps to the state penal system.72 And still, tensions remained between the camp administration and the judiciary over suicides in the camps. At the same time, the judiciary, including local courts and state prosecutors in charge of dealing with deaths in the camps, increasingly co-operated with the SS. According to a 1935 statistic, three Dachau prisoners and one Sachsenburg prisoner had killed themselves in early May 1935. Local judicial authorities, resigning to the creeping SS undermining of the legal system, simply recorded these cases and permitted the funerals of these prisoners without carrying out further
68 Institut fu r Zeitgeschichte Munich, Fa 284, Bl. 18: Oberstaatsanwalt Rudolf Reuter to Walter Buch, 8 February 1935; also quoted in Gruchmann, Justiz im Dritten Reich, op. cit., 378. 69 Gruchmann, Justiz im Dritten Reich, op. cit., 379. For similar cases see BAB R 3001/21056, Diensttagebuch des RJM, Bd. 3, Eintrag vom 16. Mai 1935. 70 Evans, Rituale, op. cit., 764. 71 BAB, NS 4 BU/12, Bl. 393: Eicke an die Kommandanten der Konzentrationslager, 24 May 1935. 72 Evans, The Third Reich in Power, op. cit., 87.

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investigations.73 One of these cases was that of Max Kohn, a Jewish trainee lawyer who had been imprisoned at Dachau since April 1933. On 26 May 1935 the Pariser Tageblatt, a left-wing exile newspaper, reported that the SS had murdered Kohn. This article prompted the Munich State Prosecutor, worried about foreign atrocity propaganda, to contact the Bavarian Political Police to investigate Kohns dubious death. The Dachau SS claimed Kohn had hanged himself with his belt. Weeks later, on 15 July, the Bavarian Political Police penned a curt reply to the Munich State Prosecutor, rejecting an investigation and insisting that an objective comment on atrocity lies in Jewish exile newspaper [was] not possible for the Bavarian Political Police. The judiciary did not pursue its investigations further.74 On 16 October 1935, Reich Minister of Justice Gu rtner sent a list with details of suspicious deaths in the camps, including suicides, to Himmler. On 6 November 1935 Himmler wrote to Gu rtner that specic measures. . . were not deemed necessary given the already most conscientious leadership of the concentration camps.75 Himmler had consulted with Hitler who, unsurprisingly, fully supported him, with the result that Gu rtners subsequent complaints about murder and torture in the concentration camps fell on Hitlers and Himmlers deaf ears.76 With Hitlers full support, the Gestapo was statutorily exempted from juridical review in February 1936.77 Yet the SS still did not have the power to kill inmates, even after Himmlers appointment as Chief of the German Police in June 1936, which considerably increased the SSs power and control of both political repression and terror against social outsiders. The SS and the police still had to report cases of unnatural deaths to the judicial authorities which is why they continued deliberately to misreport murders as suicides.78 In the meantime, many legal ofcials began to accept that investigating killings and maltreatment of concentration prisoners was not their responsibility. There was increasing collaboration rather than conict between the SS and the judiciary.79 Take the case of Josef B., a 52-year-old alleged habitual criminal who had been imprisoned in various concentration camps since July 1934. On the night of 2122 February 1939, B. allegedly hanged himself with his vest in a Sachsenhausen arrest cell. B. had been locked up in the arrest block because of a pending investigation. An SS guard, on duty in the arrest ward, found B. hanging on a radiator. An ofcial autopsy certied that B. had committed suicide. Signicantly, the state prosecutor was not present when the SS guard

73 BAB, R 3001/21056, Bl. 1056: Diensttagebuch des Reichsjustizministers. 74 BAB, R 3001/21059, Bl. 59: Diensttagebuch des Reichsjustizministers. For the article see In Dachau zu Tode gemartert, Pariser Tageblatt, no. 530, 26 May 1935. 75 Quoted in Gruchmann, Justiz im Dritten Reich, op. cit., 649. 76 Gruchmann, Justiz im Dritten Reich, op. cit., 64952. 77 Wachsmann, Hitlers Prisons, op. cit., 175. 78 Gruchmann, Justiz im Dritten Reich, op. cit., 646. 79 Wachsmann, Hitlers Prisons, op. cit., 184.

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who had found B. dead was interrogated by the camps political department. The state prosecutor did not open proceedings.80 In another case, the judiciary and the SS even collaborated with each other when they investigated a suicide in the Sachsenhausen camp. Friedrich Weissler, a baptized Jew and a former senior judge, was murdered in the Sachsenhausen camp on 19 February 1937 by SS guards. Sacked in the wake of the April 1933 Law for the Restoration of the Professional Civil Service, Weissler was a leading member of the Confessing Church, founded by pastors concerned with the nazication of Protestant doctrine. From 1937 the regime began to suppress the Confessing Church with particular zeal. Around 700 pastors were arrested, including Martin Niemo ller, one of the Confessing Churchs leaders. In May 1936, members of the Confessing Church, including Weissler, had sent a memorandum to Hitler, criticizing nazi attempts to purge Christianity of its Jewish roots. They also protested against nazi terror and the concentration camp system. After the memorandums publication in foreign newspapers in July 1936, the Confessing Church distanced itself from the memorandum and blamed Weissler for it. He was taken into Gestapo custody and, on 13 February 1937, transferred to Sachsenhausen camp.81 Weissler was put into an isolation cell, where he was found strangled on 19 February 1937. A former prisoners eyewitness statement, written before a postwar trial against Sachsenhausen guards, raises the question of agency. According to this testimony, the Gestapo had instructed the camp SS to kill Weissler. Because the camp SS did not have the formal right to execute Weissler, they left it to guards to suicide him. Two SS guards kicked him with their jackboots until he was dead.82 To cover up this murder, they put a noose around his neck, claiming that he committed suicide. One of the guards, Blockfu hrer Paul Zeidler, then ordered Dr Walter von Schwichow, the camps chief paramedic and Kapo of the Jewish barrack, to certify that Weissler had committed suicide. When giving evidence to a Frankfurt court in 1964, Schwichow stated that he had refused to issue a death certicate. Schwichow claimed that he contacted the Berlin state prosecutor via a go-between. A Berlin court opened proceedings against the two SS guards.83 The two guards could only be prosecuted because Eicke, worried about the negative impact of this case on public opinion in Germany and abroad, backed

80 Landesarchiv Berlin, A Rep. 35802, Nr. 2880, Betrifft: Todesermittlungssache betr. den Berufsverbrecher B. 81 On his admission to the camp, see Archiv Sachsenhausen, D 30 A/32, Bl. 222; on his death see the brief note in Archiv Sachsenhausen, D 1 A 1016, Bl. 88. 82 Archiv Sachsenhausen, JD 4/18, Bl. 478: letter from Pastor Augustin Flossdorf to investigating judge, 30 September 1960. On Weisslers death see also Drobisch and Wieland, System der NSKonzentrationslager, op. cit., 303. 83 Archiv Sachsenhausen, JD 8/2, Teil 1, Bl. 57, testimony of Dr. Walter von Schwichow, 29 October 1964.

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the judiciary in the case. He discharged Zeidler and published Zeidlers sacking in a circular read by all SS camp guards.84 A Berlin court sentenced Zeidler to one year in prison for grievous bodily harm. Concerned about public opinion and the foreign presss reaction, the court excluded the public from the trial.85 According to an ex-prisoners testimony given to a Dortmund court in 1961, Weisslers relatives, anxious about their livelihood, prompted his life insurance company to carry out an autopsy of his corpse. The post-mortem revealed that the two SS guards had indeed kicked him to death.86 The conict between the SS and the judiciary over investigating suicides and the jurisdiction over the camps was only fully resolved after the outbreak of the second world war. The regime, backed by many legal ofcials, was less and less concerned with maintaining due legal process and the SS, with Hitlers full support, became more assertive. After October 1939, SS courts alone were in charge of all cases involving SS and police personnel. Thus the judiciary was no longer in charge of investigating crimes perpetrated by SS personnel within the camps. Only inmates suicides and cases in which one prisoner had killed another were still to be investigated by the courts. But this rule was soon superseded by the increasingly powerful SS. From early 1940 onwards, SS courts were solely in charge of investigating all deaths of camp inmates,87 marking their complete independence from the judiciary.88 This regulation reected the increasing nazi disregard for the judiciary and the growing collaboration between the judiciary and the SS. After the outbreak of war, the nazis and the SSs contempt for the judiciary meant that due legal process was to be superseded by what the nazis called healthy popular sentiment. In their view, the legal system was treating alleged criminals and eugenically worthless elements who were undermining the war effort too softly, while young Germans were dying on the front line. At the same time the legal system became more radical during the war, sentencing more and more people to death and, from 1942, even handing over certain

84 Institut fu r Zeitgeschichte, MA 293, SS-TV Befehlsblatt Nr. 5, May 1937. 85 Einzelne Aktionen und ihre Opfer: Die Ermordung von Ha ftlingen des Konzentrationslagers Sachsenhausen, in Gu nter Morsch (ed.), Mord und Massenmord im Konzentrationslager Sachsenhausen 19361945 (Berlin 2005), 71151, at 718. On Weissler see Martin Greschat, Friedrich Weissler: Ein Jurist der Bekennenden Kirche im Widerstand gegen Hitler, in Ursula Bu ttner and Martin Greschat (eds), Die verlassenen Kinder der Kirche: Der Umgang mit Christen ju discher Herkunft im Dritten Reich (Go ttingen 1998), 86122, at 115. On the Confessing Church see Evans, The Third Reich in Power, op. cit., 2303. 86 Archiv Sachsenhausen, JD 21/21, Bl. 13, interrogation of Anton Kramer, Dortmund, 6 July 1961. 87 For a survey of SS courts see Bianca Vieregge, Die Gerichtsbarkeit einer Elite: Nationalsozialistische Rechtssprechung am Beispiel der SS- und Polizei-Gerichtsbarkeit (BadenBaden 2001). 88 Gruchmann, Justiz im Dritten Reich, op. cit., 6545.

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prisoners to the police for extermination through labour in concentration camps.89 The suiciding of prisoners in large numbers stopped after the outbreak of war, because the SS now had the power to execute inmates. Statistics from the Sachsenhausen camp illustrate this shift. In 1940, the Sachsenhausen camp authorities recorded 109 suicides. Most cases were probably not suicides, but covered-up murders. In 1941, despite rapidly increasing inmate numbers, the number of reported suicides dropped to 13.90 So what does this study of suicide in the pre-war nazi concentration camps tell us about repression and responses to it in the Third Reich more generally? Well into the late 1930s, camp guards suicided prisoners to prevent judicial investigations. Often the suicided prisoners were Jewish, reecting the nazis deepseated antisemitism.91 The agency of suiciding prisoners varied. Sometimes individual guards killed prisoners or tortured them to death on their own initiative; sometimes senior camp ofcials ordered guards to kill prisoners. In any case, senior camp ofcials helped cover up the killings as suicides and usually backed individual guards when they faced legal investigations. The judiciary remained in charge of what went on within the camps, at least on paper. It is this legal aspect that helps us better understand the changing relationship between the camp system and the judiciary and the power conicts within the nazi regime, which in turn shaped the prole of the emerging concentration camp system.92 As the Third Reich consolidated its power, the difference between the judiciary on the one hand and the SS on the other became increasingly blurred. The judiciary did not succeed in punishing camp ofcials who had suicided inmates. State prosecutors increasingly surrendered to the power of the SS and often did not even open proceedings against camp guards. Yet before 1934 the public impact of legal investigations concerned the SS. As the SS apparatus became more powerful after the Ro hm purge in 1934 and Himmlers appointment as chief of the German police in 1936, the SS, backed by Hitler, became more condent in its dealings with the judiciary. The judiciary saw itself increasingly outmanoeuvred by the SS. Hitlers November 1935 amnesty of Hohnstein guards who had been sentenced to prison terms for abusing and killing prisoners was a signicant step towards the ofcial recognition of the camps as places beyond the law and of the lawlessness of nazi terror that knew no limits.93

89 Nikolaus Wachsmann, Annihilation through Labor: The Killing of State Prisoners in the Third Reich, Journal of Modern History 71 (1999), 62459. 90 Archiv Sachsenhausen, D30A/34/1. 91 Ju us, Verfolgung, Ausbeutung und Vernichtung: Ju ftlinge im System rgen Mattha dische Ha der Konzentrationslager, in Gu ftlimge im dische Ha nter Morsch and Susanne zur Nieden (eds), Ju Konzentrationslager Sachsenhausen 1936 bis 1945 (Berlin 2004), 6490. 92 Caplan, Introduction, in Gabriele Hertz, The Womens Camp in Moringen, op. cit., 12. 93 Gruchmann, Justiz im Dritten Reich, op. cit., 374.

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There were many attempts at placing nazi terror in the camps under bureaucratic control, ranging from Reich Interior Minister Wilhelm Fricks 1935 initiative to place permanent bureaucratic limits on the use of protective custody to the judiciarys attempts to maintain its ultimate jurisdiction over the camps.94 From 1935 the judiciary gradually began to accept that the camps were places beyond its control. At around the same time, Himmler and Hitler decided that the existing camps would be transformed into permanent sites of preventive policing.95 Yet because of nazi concerns about public opinion in Germany and abroad, it was not until the outbreak of the war that the SS gained the formal power to execute inmates, transforming the camps into extra-legal places of connement. Actual suicides allow us to highlight individual inmates reactions to nazi terror. There were many suicides in the pre-war camps. However, actual statistics are scarce, and even if available, they are hard to interpret because of the SS cover-up of murders as suicides. Despair over the uncertainty of their imprisonment and the unbearable conditions drove many inmates to suicide. Crucially, the cover-up of murders as suicides allowed the nazis to deny legal responsibility, placing the blame on the inmates themselves. For the SS, suicide was an act of weakness, and inmates who committed suicide were portrayed as cowards.96 In the early years of the Third Reich, the SS encouraged inmates to commit suicide. Towards the late 1930s, and especially after the beginning of the war, SS attitudes towards inmate suicide gradually underwent a fundamental transformation. No longer did they encourage inmates to kill themselves, because the SS increasingly saw itself as the master over the lives and deaths of inmates in a system of unlimited nazi terror. What all this suggests is that we need to integrate the history of the nazi camps into the wider social and political history of the Third Reich and to overcome the recent historiographical trend towards ever more detailed histories of the concentration camps.97 The recent historiography has, with some notable exceptions, articially isolated the nazi concentration camps from the political and social history of the Third Reich. We need to broaden our view of nazi terror, not narrow it. And we need to locate the concentration camps in a wider web of nazi terror and combine

94 Jane Caplan, Political Detention and the Origin of the Concentration Camps in Nazi Germany, 19331935/6, in Neil Gregor (ed.), Nazism, War and Genocide: Essays in Honour of Jeremy Noakes (Exeter 2005), 2241, at 37. 95 Tuchel, Konzentrationslager, op. cit., 30717. 96 Goeschel, Suicide, op. cit., 612. 97 See for example the following multi-volume publications: Wolfgang Benz and Barbara Distel (eds), Der Ort des Terrors: Geschichte der nationalsozialistischen Konzentrationslager (7 vols, Munich 2005); idem (eds), Geschichte der Konzentrationslager 19331945 (Berlin 2001). For a review of the recent literature see Karin Orth, Die Historiografie der Konzentrationslager und die neuere KZ-Forschung, Archiv fu r Sozialgeschichte 47 (2007), 57998; and Nikolaus Wachsmann, Looking into the Abyss: Historians and the Nazi Concentration Camps, European History Quarterly 36 (2006), 24778.

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legal, social and political history to understand the pre-war origins of a system of terror, repression and mass murder on an unprecedented scale.

Christian Goeschel
is a Leverhulme Early Career Fellow at Birkbeck College, University of London, where he teaches Modern European History. Apart from articles in several journals, he has published Suicide in Nazi Germany (Oxford 2009). With Nikolaus Wachsmann he has just completed The Nazi Camps 19331939: A Documentary History (forthcoming).