Nazi Crimes against Jews and German Post-War Justice

Edith Raim

• Publisher: De Gruyter Oldenbourg
• Year: 2014
• ISBN:
  9783110395693
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Of all victims of Nazi persecution, German Jews had to suffer the Nazi yoke for the longest time. Throughout the Third Reich, they were exposed to anti-Jewish propaganda, discrimination, anti-Semitic laws and increasingly to outrages and offences by non-Jewish Germans. While the International Military Tribunal and the subsequent American Military Tribunals at Nuremberg dealt with a variety of Nazi crimes according to international law, these courts did not consider themselves cognizant in adjudicating wrongdoings against German citizens and those who lost German citizenship based on the so-called "Nuremberg laws, " such as Germany's Jews. Until recently, scholarship failed to explore this task of the German judiciary in more detail. Edith Raim fills this gap by showing the extent of the crimes committed against Jews beyond the traditionally known facts and by elucidating how the West German administration of justice was reconstructed under Allied supervision.

Part I: The Reconstruction of the German Judicial System in the Western Zones

dp n="34" folio="20" ? dp n="35" folio="21" ?

The Legal Divisions of the Western Allies

History is that certainty produced at the point where the imperfections of memory meet the inadequacies of documentation.

Julian Barnes, The Sense of an Ending

It had become obvious to the three Western Allies during the war that following the surrender, the military governments would have to take care not only of the occupation as such, but of the existing German legal system, with its courts and prisons, as well. Existing German institutions – such as the Reich Ministry of Justice – were considered improper tools.⁶⁰

The American Legal Division

Beginning in September 1945, the United States Group Control Council was known as the Office of Military Government, US (OMGUS). In 1944/1945, the American legal division comprised five offices: Director, Legal Advice Branch, Justice Ministry Branch, Judicial Branch, and Prisons Branch. The directors of the Legal Division were Charles Fahy in 1945/1946, Alvin J. Rockwell from 1946 to 1948, and finally John M. Raymond.

Very broadly defined, the American Legal Division initially had four tasks:

1. To completely eliminate Nazi ideology in the German administration of justice and the legal system
2. To reorganize and denazify the former Reich Ministry of Justice, the patent office and all subordinated institutions of the Reich Ministry of Justice
3. To punish war criminals as well as delinquents transgressing against occupation rules
4. To create and implement military government laws.⁶¹

By 1949, its tasks read as follows:

1. “The establishment and perpetuation of a German system of justice which accords with the principles of democracy, due process of law, justice under law, and equal rights for all persons without distinction by reason of race, nationality, political belief or religion”⁶²
2. The prevention of any revival of Nazi ideology
3. The implementation of principles stemming from Control Council (CC) Law No. 10 and military government laws
4. “To educate the legal profession, the public, and governmental officials as to the fundamentals of the legal systems of democratic countries as contrasted with the systems of totalitarian countries.”⁶³

The Legal Division (OMGUS) had its counterparts on the regional level. Military governments in Bavaria (OMGBY), Hesse (OMGH), Württemberg-Baden (OMGWB) and Bremen (OMGBR) had legal branches that dealt with the German legal system in the American Zone.

The British Legal Division

Scholars have characterized the structure of British Military Government in Germany as highly complex. The Control Commission for Germany (British Element) (CCG/BE) was set up in November 1943. In August 1945, the responsibilities were transferred from the war and foreign offices to a separate ministry responsible for Germany and Austria (Ministry for the Affairs for the Control of Germany and Austria). The advanced headquarters (the central headquarters) was located in Berlin, with the main headquarters and smaller offices (Zonal Executive Control Offices) located in several small towns in Eastern Westphalia. The Legal Division, headed by Colonel John Frances Warre Rathbone (1909–1995), had its headquarters in Herford, a small town in Westphalia.⁶⁴ The size of the British Control Commission was impressive. In October 1946, the British contingent employed about 26,000 people,⁶⁵ prompting calls for cuts in staffing and improvements in efficiency.

Similar to those of its American counterpart, the British legal division’s tasks included control of the military government courts (Control Commission Courts); the German justice administration, prisons and internment camps; drafting of laws and decrees; and advising their respective military governments.

The French Direction Générale de la Justice

The French had been latecomers among the occupying powers of Germany; furthermore, they had not been present at the conference in Potsdam. They would compensate for this by establishing a formidable administration. The military government for the French Zone (Gouvernement Militaire de la Zone Française d’Occupation) was located in Baden-Baden. Its General Directorate for Justice (Direction Générale de la Justice) was headed by Charles Furby until the end of 1947, and then by Henri Lebègue. Its sphere of influence comprised four provinces of the French Zone of Occupation: southern Baden, Württemberg-Hohenzollern, Palatinate, and the southern Rhineland. Each regional directorate had a German justice section responsible for the functioning of the German courts, the supervision of the German higher judicial officials (state attorneys, judges, solicitors, and notaries), questions of German law and the protection of Allied interests.⁶⁶

Western Allied Politics Concerning the German Judicial System

Military Government Law No. 2 gave the occupiers wide-ranging authority over the German administration of justice. Supervision and control over trials, unlimited access to files and registers; review and cassation or alteration of sentences and decisions; removal of higher judicial officials from office; and general supervision of staff, budget and administration, including the possibility of transferring trials to military courts if the interests of the occupying powers were involved.

Control over the German judicial system was an ambivalent task for the Western Allies. After the disastrous German judiciary of the Third Reich, only continuous supervision could smooth the path back to a state governed by the rule of law. On the other hand, the goal – to foster a functioning legal system in German hands – entailed that the Allies respect the independence of justice, thus intervening as little as possible. The Americans boiled it down to the brief formula of maximum surveillance with minimal intervention.⁶⁷

The British called it a “policy of indirect control,” under which supervision would only affect the level of the courts of appeal.⁶⁸ They were also fully aware of the historic dimensions of this task, noting that “any form of control of a modern legal system by foreigners is unprecedented.”⁶⁹

All Western legal divisions altered their initially rigid control to a softer system of supervision, guidance and regular inspections. From early on, the Americans intended to gradually grant the German legal administration more responsibility and subsequently to reduce control. Any interventions were limited to a sensible degree.⁷⁰ This objective was also clearly expressed in the policy statements of the German justice administration: “The independence of the judicial and legal administration will be fostered by allowing the courts freedom in their interpretation and application of the law and by limiting the regulatory measures of military government to the minimum consistent with the accomplishment of the objectives of the occupation.”⁷¹ Similarly, it read,

It is the policy of Military Government to establish and maintain the independence of the German judiciary. In conformity with that policy, supervision by Military Government will be confined to the minimum consistent with the protection of the occupying force and the accomplishment of the aims of the occupation.⁷²

The tasks were clearly defined: “Hold Germans responsible to administer justice between themselves, provided there is no interference with Military Government objectives.”⁷³

Nevertheless, the American occupying power felt it necessary to check all appointments or re-appointments within the German justice administration to ensure that each staff member had the necessary qualifications as well as a positive attitude towards democracy, were loyal to the Military Government and respected the reserved areas of law of the occupying powers. As the American Legal Division would soon discover, supervision of all courts was a tall order. In the American Zone alone, there were a staggering 285 local courts and 38 district courts for which “continuous supervision … [would] continue to be exercised through systematic field trips and by analysis of reports.”⁷⁴ The British Legal Division was facing a similarly overwhelming volume of 229 local courts, 29 district courts, five re-opened courts of appeal (which would soon swell to the original pre-occupation number of eight, ³⁵ district courts, and 371 local courts).⁷⁵ The French had to deal with a more modest number of courts, but had to establish new high courts.

The American Military Government called for moderate control. Their aim was to encourage the self-government of the German people, thus endeavoring to find a means to, on the one hand, do justice to the interests of the Military Government and the occupying powers, while on the other hand allowing for the reconstruction of an independent German judicial system. In short:

The success of our occupation depends, in part, upon a feeling of mutual cooperation between the German judicial officials and Military Government. Any attempt on the part of US personnel to interfere with the independence of the German judiciary only tends to destroy much of what has already been accomplished in the democratization of the German judicial system .⁷⁶

British occupation authorities agreed with this view stating: “Our intention is not to run the German courts ourselves, but merely to prevent the Germans, in running their courts from doing certain things to which we object.”⁷⁷ Unlike in a colonial empire, any supervision was to be discreet:

Any method of contro...

Table of contents

• New Perspectives on Modern Jewish History
• Title Page
• Copyright Page
• Foreword
• Table of Contents
• Introduction
• Part I: The Reconstruction of the German Judicial System in the Western Zones
• Part II: Legal Foundations for the Prosecution of Nazi Crimes by the West German Judiciary
• Part III: The Prosecution of Nazi Crimes Against Jews
• Conclusion
• Appendix
• Index of Names
• Index of Places