From Dictatorship to Democracy The Role Ex-Nazis Played in Early West Germany


By , Georg Bönisch, Thomas Darnstaedt, , and

Part 4: The Judiciary That Sentenced 50,000 People to Death

The self-righteousness of the German postwar judiciary stands in sharp contrast to the calamity that the profession inflicted on Germany. Indeed, its crimes are at the very top of the list of disgraceful deeds. Between 1933 and 1945, German judges, both civilian and military, handed down an estimated 50,000 death sentences, most of which were carried out. "The dagger of the assassin was concealed beneath the robe of the jurist," said Telford Taylor, the US chief prosecutor at the Nuremberg Trials.

Roughly 80 percent of the judges and prosecutors who had served Hitler's regime of terror until May 8 were soon dispensing justice once again -- but this time in the young Federal Republic. "Perhaps there is truly evidence," wrote Nazi expert Jörg Friedrich, "that a constitutional state can stand on a judicial mass grave."

In the misery of the postwar era, lawyers were urgently needed. Although the crime rate skyrocketed in the era of black markets and refugees, there was a shortage of judges to hear cases. To make up for the deficiencies, the occupiers of the western zones appointed judges who had retired before 1933, or they hired lawyers untainted with Nazi connections. Starting in October 1945, the British practiced the so-called "piggyback procedure" in the recently established judicial administration: For each judge without a Nazi past, one judge with former Nazi connections could be appointed. But, by the summer of 1946, even this restriction had been dropped.

Now the halls of justice were even staffed with judges who had once served on the Nazis' People's Court (Volksgerichtshof), which was set up in 1934 to handle "political offenses" and became notorious for the frequency, arbitrariness and severity of its punishments. Nevertheless, the civilian courts handling the de-Nazification process merely classified them as "hangers-on." In 1953, at least 72 percent of judges on the Federal Supreme Court, Germany's highest court for criminal and civil law, had former Nazi connections. The number increased to 79 percent by 1956 and, in the criminal division, it was at 80 percent by 1962.

Suppressing Opposition to the Regime

It wasn't until after 1964, when Nazi-affiliated judges still made up 70 percent of the court, that one could begin "to observe a decline," says Hubert Rottleuthner, a sociologist of law. He also points out that this statistic does not include the judges and prosecutors who worked exclusively in the military justice system. Their trail of blood is significantly wider than that of even the "special courts" (Sondergerichte), established to suppress opposition to the regime, and the People's Court.

Between 1939 and 1945, wartime judges sentenced an estimated 30,000 soldiers to death, often for minor offences and, as some said, "as a deterrent." Up to 90 percent of these sentences were carried out by firing squads or executioners.

Despite their horrific pasts, the expertise of these judges was soon in demand at the Federal Ministry of Justice (BMJ). The specialists at the new ministry secretly worked on relevant regulations aimed at establishing new versions of the notorious wartime courts. For example, a special criminal court for the new armed forces, the Bundeswehr, included emergency rules that would have largely deprived German citizens in uniform of their rights.

Among the promoters of a new system of military justice were Josef Schafheutle, who went from working in the Reich Justice Ministry to being head of the BMJ's criminal law division, and his department head, Eduard Dreher. During the war, Dreher had served as the senior public prosecutor at the special court (Sondergericht) in Innsbruck, Austria. In one case, he called for the death penalty "although even the special court supported a reprieve," according to journalist Ernst Klee.

The Death Penalty?

To have the secretly written "preliminary" consultant drafts reviewed by outside experts, the Bonn ministry installed a "Military Criminal Law Commission," whose members -- including a former air force judge and a former army senior field judge -- repeatedly cited the extremely harsh provisions of the war era during their discussions behind closed doors. And at least three commission members favored reintroducing the long-abolished death penalty.

Another member explained when the "ultimate penalty" was necessary in his opinion, namely when the "capacity of the military" was in jeopardy and, with it, the "security of the nation" and the "maintenance of discipline."

A number of soldiers had been executed during the war for the "violation of discipline." Now the ugly word was back in use in the postwar justice ministry. Although nothing ever came of the law, the malignant spirit of its authors did not disappear as quickly. To this day, every German attorney and judge is familiar with the experienced Nazi jurist Dreher, who also wrote the leading opinion on the German Criminal Code.

The jurists acquitted themselves because they were able to argue on their own behalf. With the exception of two chairman of a military court martial, whose actions could no longer be treated as the actions of judges, not a single judge in the Federal Republic has ever been convicted of perversion of justice.

In the new Germany, victims in the administration, the courts and parliament often encountered judges, bureaucrats and doctors who had once served in Hitler's Third Reich.

For example, someone who had walked into the Department of Reparations in the villa once owned by the industrialist Rudolf ten Hompel -- the headquarters of the Ordnungspolizei (the regular police force of Nazi Germany) in the western city of Münster -- in the winter of 1953/54 would have stood a good chance of running into a former Nazi there. Three of the seven employees were former party members.


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