The Prosecutor, Jack Fairweather, Penguin Random House, 2025, 478 pages,
If you think you are too small to make a difference, try sleeping with a mosquito.
Dalai Lama
The Integrity of the global order rested on these proceedings, started Jackson. The wrongs of which the court would hear were “so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.” Yet Jackson also argued that the German people were not responsible for the Nazis’ crimes. They, too, had suffered under Hitler. He urged them to become partners in restoring the country’s ruined reputation and establishing a moral and legal code that could unite the world against future wars. With these brief words, Jackson had realized Bauer’s worst fear: the unearned exoneration of the German people. (p. 81)
One of the quandaries of post conflict transitional justice is how to deal with legacies of systemic, pervasive, industrial-size abuses, human rights violations, and mass atrocity crimes. Even more so when a very large segment of the population, at every level, enthusiastically participated and supported, apathetically acquiesced, or simply turned a blind eye to the government/regime’s actions and horrific treatment of their fellow citizens.
Aside from having to confront its past and reimagine its future, a defeated and defunct Nazi Germany had to deal with the reality that in going forward it would be divided into two antagonistic states. Each would pursue internal and external policies and politics. East Germany aligned with the Soviet Union as part of the Eastern Block and a member of the collective defence treaty, the Warsaw Pact. West Germany aligned with the US and other Western democratic states as part of the Western block and a member of the North Atlantic Treaty Organization (NATO). The guns of war may have fallen silent, but a new and different type of war was evolving. Like an early spring rosebud, Cold War was resolved to bloom. Metaphorically, as Winston Churchill put it, the Soviet Union had lowered an iron curtain in Europe.
West Germany was on the front line. It would quickly need to establish and foster a credible constitutional democracy, rebuild and re-realize its industrial potential, partner-up with other European liberal democracies in stymying the influence and expansion of communism, and become a full-fledged player in shaping a new world order grounded in international norms and organizations. Moving ahead without the inconveniences and repulsiveness and complications of individual and collective accountability would prove challenging. If pesky nuisances of the inhumane depravity inflicted by the Nazi Regime on selected groups of its own citizens could be ignored, diminished, suppressed, or concealed, looking in the rearview mirror and digging up the past in search of historical truths could artfully be contained.
The focus had to be the road ahead. And who better to have behind the wheel on the road to exoneration, redemption, and transformation than conservative anti-communist Chancellor Konrad Adenauer. An unsentimental realist with gravitas, acumen and vision, he had no compunctions over having former members of Hitler’s notorious Schutzstaffel aka SS (the primary implementers of the Final Solution) and other high-ranking Nazis with sordid pasts, as close collaborators in his government. The US and the West, in general, accepted this collaboration; they too indulged in absorbing and insulating former Nazis and Nazi sympathizers deemed useful in combating real and perceive threats by the Soviet Union, its satellites, and proxies.
The road ahead seemed relatively clear. After the Nuremberg trials – considered by the Germans (and others) as victors’ justice, with a few more trials for individual crimes, the past could be set aside. There would be no need for any meaningful soul-searching or moral self-reflection. Nor would there be a need to come to terms with the evil nature of the Nazi regime, to try to comprehend what had caught the imagination of so many Germans to slavishly buy into Hitler’s ideology, his perverse use of the law, his pogroms, his extermination camps. A very large segment of the German population enthusiastically supported, cheered, and marched to Hitler’s Aryan theories. Brainwashed by his lethally absurd master race claims, of their superiority, convinced and self-deluded into believing they had transcended into Friedrich Nietzsche’s Übermensch, justified their actions and those of the Nazi regime as a matter of right, of entitlement.
Adenauer may have thought the road to reintegration was relatively unobstructed. What he could not see and could not have anticipated was the hidden hindrance that lay ahead. When finally seen, it appeared innocuous, a mere inconvenience. It would prove anything but. This inopportune and unavoidable hindrance which would have a profound impact was Fritz Bauer.
In the pantheon of legal giants in international criminal law, where luminaries such as Hersch Lauterpacht, Raphaël Lemkin, Robert Jackson, Ben Ferez feature front and center for contributing and shaping of international criminal law and innovatively and doggedly pursuing international criminal justice and accountability, Fritz Bauer, the state prosecutor (Generalstaatsanwalt) of Hessen (based in Frankfurt) is among them. But for Bauer’s Homeric efforts, prosecutions in West Germany against those responsible for the inhumane treatment of the Jews, Roma, Sinti, and “anti-social” types (gay, homeless, sex workers, pacifists) and the systematic and industrial-size killings and experimentation at Auschwitz and other concentrations camps under the Nazi regime, would likely have been frustrated to the point of yielding no appreciable results.
And but for Jack Fairweather’s extraordinarily researched and absorbingly written The Prosecutor, we would not know the full extent of the behind-the-scene machinations – contextualized with discernable nuance, considerable detail, and prevailing (geo)political conditions – by and against Bauer in his efforts to expose the atrocities of Auschwitz not merely as the handiwork of individuals for which they should be held to account, but for also being part of a state-sponsored, state-organized, and state-managed killing enterprise.
Bauer saw the big picture. Understanding the past and visioning the future, he wanted to force his countrymen to “confront their own complicity in the Nazis’ crimes. Only then could Nazism be expunged from German culture, and his [Bauer’s] family and other survivors might begin to believe the horror would not be repeated.” Today, considering the advancement of international criminal law and procedure, and the evolvement of prosecuting cases since the ad hoc tribunals for the former Yugoslavia and Rwanda were set up, this may be taken as a given. At the time however, and considering the prevailing circumstances (nationally and internationally), this was nothing short of revolutionary.
The Prosecutor is an homage to Bauer. Deservingly so. But it is much more. Fairweather helps debunk any misconceptions that post-war West Germany willingly and unreservedly engaged in a cathartic confrontation of its past, or that the Germans organically and intuitively grasped the glaringly palpable nettles: consciously and unreservedly appreciating their own complicity in the crimes committed by the Hitler regime. During Nazi Germany, academics, intellectuals, doctors, prosecutors, judges, technocrats, industrialists, scientists, bureaucrats, workers, teachers, students – virtually the entire fabric of society – gave succor to the abuse, persecution, and extermination of fellow citizens, neighbors and acquaintances singled out by Hitler and his associates.
To go into details about The Prosecutor would be a spoiler. Here is an amuse-bouche to savor and entice you give this excellent book a proper read.
The protagonist, Fritz Bauer, was a Jew, a homosexual, and an active member of the left-leaning Social Democratic Party. A trifecta of undesirability under Hitler’s Nazi Germany. His political leanings and activism – despite or perhaps because he was a jurist – was the tripwire for his initial arrest and concentration detention. Spending the war years as a refugee in Sweden, he returned to West Germany with a mission.
Bauer Instinctively understood that prosecuting individuals for their crimes, as if they occurred in isolation, was insufficient. He rightly believed that for transitional justice (transitioning from an unjust to a just society) to take root and flourish required a collective realization and acceptance of all that had transpired during the Nazi period. On an individual basis, one had to appreciate not only their discrete crimes, but also their complicit connection and contribution to the organized crimes, most notably to the Final Solution. Bauer was insistent that his countrymen confront their own participation, self-acknowledge that they – themselves, their fathers, grandfathers, mothers, brothers, sons, etc. – were if not one of the spokes of the genocidal wheel, they certainly were part of the grease that facilitated its smooth and unhindered turning. Bauer believed that the trial proceedings – if enough and well conducted – could act as the catalyst that would awaken the German consciousness.
Throughout The Prosecutor, Fairweather expertly weaves Bauer’s imperative for a collective soul/moral searching of the German population and for the German psyche to adjust its misguided beliefs in the rectitude of Hitler’s Aryan ideology, policies and actions, and to accept responsibility. Fairweather cogently captures Bauer’s raison d’être and maniacal drive to achieve his mission in this passage:
Bauer was staggered by the number of perpetrators who walked free. Among them were Adolf Eichmann, the man who transported Europe’s Jews to the death camps; Josef Mengele, the SS doctor who had performed selection for the gas chambers on the ramp in Auschwitz; Hans Globke, the bureaucrat who had helped create the legal framework for what was to become known as the Holocaust. But it wasn’t simply architects and implementers of the genocide who remained at large. Hitler had enlisted the German people in a national effort to persecute, plunder, and finally kill the entirety of Europe’s Jews. Eight and a half million Germans had joined the Nazi Party. More than 250,000 had served in the SS, which had operated the death camps of Auschwitz, Majdanek, Treblinka, Bełżec, Chełmno, and Sobibór and staffed special murder squads known as Einsatzgruppen. Tens of thousands of soldiers had committed atrocities on the front lines. Countless civil servants had participated in the vast bureaucratic machinery of industrialized murder. And yet most of these people had simply slipped back into German society and resumed their lives as if nothing had happened. (p.2)
Thanks to Bauer, Adolf Eichmann, one of the major organizers of the Holocaust, hiding in Argentina under an alias, was located. The German government had no interest in tracking down and prosecuting Eichmann. Adenauer had his reasons; his chief of staff was none other than Hans Globke. Even with Hitler’s Super Spy, Reinhard Gehlen, the once Nazi intelligence office who with the help of his US handlers went on the set up West Germany’s Federal Intelligence Service (BND) running interference for Globke, Eichmann in Germany could be explosive. No telling what Eichmann would reveal and to what extent he might implicate Globke in the Final Solution.
Neither was Israel interested in tracking him down. When Israeli Prime Minister David Ben-Gurion was informed of Eichmann’s whereabouts and was pressed by Bauer, he demurred. It would take two years for the Mossad (Israel’s intelligence services) to finally act on the information Bauer had provided. Even then, it seems that Ben-Gurion and the Mossad only acted after Bauer threatened to issue an arrest warrant and seek Eichmann’s extradition to Germany.
Bauer was if anything a great strategist and tactician. He knew that if he had moved with an arrest warrant, Eichmann would be tipped off and disappear or Argentina would decline to extradite him. He also knew that bringing Eichmann to Germany was not much of an option. Former Nazi Judges were on the bench. Achieving a conviction would be a challenge. More importantly, Bauer rightly suspected these Judges, who by their own past actions could be implicated in the Final Solution, were unlikely to permit their own complicity to be aired. Nor would these judges allow the full airing of names and documents that linked high-ranking Nazis and SS members serving in the Government or who had blended into society, enjoying esteemed standings, to the Final Solution. Trying Eichmann in Germany would result in a whitewash, prejudicing future cases.
To his credit, Bauer neither rashly issued an arrest warrant nor recklessly sought public attention in the matter. He plodded along methodically, cautiously, and cleverly. He was after results, not ego-gratifying publicity. He must have thought that Israel was unconcerned about getting their hands on Eichmann. Not so, the timing was not right. What Bauer was unaware of was that Israel was had other pressing matters and was interested in maintaining a good relationship with Germany. Ben-Gurion was secretly negotiating with Adenauer for a $500 million aid package “to fund Israel’s nuclear program over the next decade. Israel’s long-term security and geopolitical standing, understandably, trumped precipitously arresting and prosecuting Eichmann.
Prosecuting in Germany those responsible for and connected to the crimes in Auschwitz would present its own set of challenges. Under German law perpetrators for the crimes of the Final Solution could only be convicted for individual murders – assuming the intent to kill could be established. Having a presiding judge who had been part of the Nazi judiciary didn’t help either. Yet, despite the hurdles and setbacks and unfavorable rulings, Bauer keenly understood that with the evidence at his disposal, as flawed and circumscribed as the trial would likely be (and it was) it could (and did) serve a much bigger purpose. It implicated thousands of Germans who assisted in the killing enterprise of the camps. As Bauer saw it, this could potentially create space for the definition of murder to include anyone who knowingly participated in what Fairweather calls the machinery of genocide. His methodical approach and indefatigable labor would eventually yield results. Successive governments and the German public at large would make enormous efforts to openly confront and acknowledge the full spectrum of the depravity and inhumanity of the Nazi Regime and its accomplices. And let’s not overlook Bauer’s invisible hand in the eventual trial in Germany of John Demjanjuk, a Nazi guard at the notorious Sobibór extermination camp.
Let me end with a personal note. As a career defence lawyer, I am rarely impressed let alone moved by a book centering on a prosecutor. Even more rarely I come across a book that is so thoroughly researched and measurably presented without the author injecting the subjectivity and points of view that often creep into the narrative. Whether you are a student of history or law, practicing internal criminal law, involved in transitional justice, or just interested in a fascinating and well-crafted story packed with intrigue, political and geo-political machinations, and inspirational vignettes, I highly recommend you read The Prosecutor. I can’t praise enough
Hats off to Jack Fairweather.
About Author
Thank you Michael, for this helpful review and for bringing this book to my attention. It is now on my list!
An excellent review.
If you like Jack Fairweather’s writing style and storytelling skills, pick up his “The Volunteer”. An extraordinary account of selfless courage.