bmjv.de/rosenburg

“THE ROSENBURG - THE FEDERAL MINISTRY OF JUSTICE IN THE SHADOW OF THE NAZI PAST”

EXHIBITION BOOKLET

bmjv.de/rosenburg

“THE ROSENBURG - THE FEDERAL MINISTRY OF JUSTICE IN THE SHADOW OF THE NAZI PAST”

EXHIBITION BOOKLET “THE ROSENBURG - THE FEDERAL MINISTRY OF JUSTICE IN THE SHADOW OF THE NAZI PAST”

An Independent Academic Commission spent a number of years investigating what hap- pened within the walls of the first official building of the Federal Ministry of Justice, the Rosenburg in , in the early years of the Federal Republic. The findings presented in the study “The Rosenburg Files” are as shocking as they are shameful.

Reinstalling a state based on the rule of and protecting the were tasks en- trusted to jurists, most of whom had been involved in the National Socialist regime. The fact that the Federal Ministry of Justice even gave official refuge to a war criminal responsible for the extermination of thousands of Greek and enabled him to escape prosecution can- not be justified in any way and cannot be explained to anyone.

Many former Nazi officials pursued their careers at the Rosenburg without any difficulty because they understood themselves to be apolitical legal technicians and were accepted as such. There was collective silence concerning their past. A critical examination of their own biography did not take place.

2 These officials did not bring about a democratic departure. Rather, backward-looking ideas determined their work. Discrimination and persecution of homosexuals, Sinti and Roma was continued, critical examination of Nazi injustice was delayed and there was support for drawing a line under the past. Little sign was to be seen here of the spirit of the young Basic Law.

“The Rosenburg Files” is not reading material one can simply put to one side. It highlights the special responsibility of jurists for the state and society: they perform a service to justice and in so doing have an obligation to the values of our constitution. This task requires a steadfast attitude, so as to be sensitised when even today, populists and demagogues attack human dignity or call our fundamental rights into question.

Our exhibition aims to disseminate the findings of “The Rosenburg Files”. Its intention is not to teach, but to encourage reflection. If it makes a small contribution to raising awareness of the inalienable humanitarian and democratic values of the Basic Law, it will have achieved its purpose.

Christine Lambrecht Federal Minister of Justice and Consumer Protection

3 THE “ROSENBURG PROJECT” AND THIS EXHIBITION

THE EXHIBITION “THE ROSENBURG - THE FEDERAL MINISTRY OF JUSTICE IN THE SHADOW OF THE NAZI PAST” IS PART OF THE CRITICAL EXAMINATION OF THE NATIONAL SOCIALIST PAST OF THE FEDERAL MINISTRY OF JUSTICE AND CONSUMER PROTECTION.

In 2012, the Ministry set up an Independent Commission to investigate the Ministry’s handling of the Nazi past in the early years of the Federal Republic. A team of researchers headed by historian Professor Manfred Görtemaker and legal scholar Professor Christoph Safferling examined how the Ministry dealt with the Nazi past of its staff, the personnel-based and approach-based continuities, the prosecution of crimes perpetrated in connection with the Holocaust, and amnesty and the statute of limitations in the 1950s and 60s.

The research was based on the concept of “public history”, and its interim findings were frequently presented at public symposia and put up for discussion. Since then, eight “Rosenburg symposia” have taken place – not just in , but also in the USA and Israel.

4 Book publication of “The Rosenburg Files”, 2016. © C. H. Beck Verlag Beck H. © C.

In autumn 2016, the final research findings were presented to the general public under the title “The Rosenburg Files”. The findings are unequivocal: many jurists employed in the Justice Ministry of the young Federal Republic had previously worked in the Reich Ministry of Justice or in the Nazi judicial system and had been deeply involved in the injustice of that time. More than half of all senior staff had been former Nazi collaborators and one in five had been a member of the SA. This personnel continuity had grave consequences: many were denazified only on a very superficial level, and discrimination against former victims, such as homosexuals or Sinti and Roma, was continued. Nazi criminals, on the other hand, were barely prosecuted for decades and profited from amnesties and provisions under the statute of limitations.

The purpose of this exhibition is to present the findings of “The Rosenburg Files” to a wide audience and raise awareness of the historical injustice that took place. The exhibition “The Rosenburg - The Federal Ministry of Justice in the Shadow of the Nazi Past“ will be on tour throughout Germany from summer 2017.

5 LAYOUT OF THE EXHIBITION

The exhibition is divided into nine sections. Each of these sections is represented by a dis- play stand, which addresses each respective topic using eye-witness accounts, victim and perpetrator biographies as well as examples of legal texts. The display stands convey the two-faced nature of the Ministry, contrasting a bright front with a dark reverse side: on the one side the brilliant expertise of many , on the other their dark past and deep involve­ment in the Nazi injustice.

This impression is enhanced by the exhibition design. The tilted and distorted shapes of the exhibition boards convey a sense of uneasiness and instability. Oversized office lamps li- terally shine a light on that which for a long time remained in the shadows. Drawing a line under the past instead of Thedealing Federal Ministry with of the Justice past? and its Democratic new beginning handling of Nazi criminals with former Nazi jurists? Stack of files 1 The Federal Ministry of Justice in the 1957 Start of the GDR’s shadow of the Nazi past “Brown Book Campaign” 4 1958 Ulm Einsatz­ 1 gruppen trial

Stack of files 2 1958 Establishment of the Cen- tral Office of the Land Judicial Who were2 the staff? Administrations in Ludwigsburg The Ministry’s personnel: 1959 Student exhibition entitled brilliant lawyers – often “Unpunished Nazi Judiciary” with a dark past 3 TheOnly Federal the Ministrybest? of Justice’s personnel policy between 1949 and 1963.

6 Prisoners of war or Thewar Central criminals? Division for Legal Protection to Germans Prosecuted Abroad (Zentrale Rechtsschutzstelle) in the Federal Minis- Should murder be try of Justice: official help and warnings subject to a statute for Nazi criminals Theof limitations?Federal Ministry of Justice and the statute of limitations 6 5for Nazi crimes TheNo currentend Ministry’sto history 9 handling of its own past

Convincing facade? 7Handling of its own past 8Discrimination Whatby law? remained of Nazi law after 1945? Stack of files 3 1961 Eichmann trial 1963–1965 Auschwitz trial in Frankfurt am Main

7 8 Democratic new beginning with former Nazi jurists? THE FEDERAL MINISTRY OF JUSTICE IN THE SHADOW OF THE NAZI PAST 01 THE FEDERAL MINISTRY OF JUSTICE The founding of the Federal Republic of Germany in 1949 also saw the creation of the Federal Ministry of Justice (BMJ). The new democracy was the alternative Many jurists working in the Federal Ministry to Nazi dictatorship. The Basic Law gave of Justice, for example, had previously worked high priority to human dignity and civil in the Reich Ministry of Justice or in the liberties. Within the ministries, however, judicial system of the Nazi dictatorship. the democratic new beginning often took The Federal Ministry of Justice set up an place with former personnel from the Independent Academic Commission to in- Nazi period. vestigate the extent of this personnel-based continuity and its effects. The researchers gained access to all the Ministry’s files for the first time. The findings of their work were presented in autumn 2016: “The Rosenburg Files”.

9 1 02 CONSTITUTION MINISTRY To this day, the Federal Ministry of Justice is first and foremost a ministry that drafts legislation. It prepares the Federal Govern- ment’s bills in the fields of civil law, criminal law, commercial and economic law and pro- cedural law. As the “constitution ministry”, it also examines the draft laws of other ministries to ensure their conformity with the Basic Law.

The Ministry is also responsible for super- vising the authorities in its area of compe- tence, for example the Public Prosecutor General of the . Administrative matters concerning the Federal Court of Justice, the Federal Administrative Court and the are also subject to its super- vision. The Ministry also prepares the election of judges to these courts.

The Rosenburg, a villa in Bonn, the former capital of the Federal Republic of Germany, was the seat of the Federal Ministry of Justice from 1950 to 1973.

10 11 01 WHY THIS EXHIBITION?

This exhibition is part of a critical study of the National Socialist past of the Federal Ministry of Justice and Consumer Protection (BMJV). Supplemented by Report on the German news accompanying events, the exhibition programme “Tagesschau” on 10 October 2016 is intended to present the results of the “Rosenburg Files” study and stimulate discussion. What until now has been “in the shadows” is to be brought to light.

That is why the exhibition elements also have two sides: a brighter front side = public façade and a darker shadow side = background and abyss.

The critical examination of Germany’s Nazi past is not over – there are still many open questions. We are all part of this awareness-raising process, in which we learn from the mistakes of the past and prevent them happening in the future.

12 © BMJV

02 © C. H. Beck Verlag Beck H. © C. Book publication of “The Rosenburg Files”, 2016 THE ROSENBURG FILES Presentation of “The Rosenburg Files” by Professor Manfred Görtemaker and Professor Christoph Safferling to , former Federal Minister of Justice, and his predecessor in office, Sabine Leutheusser-Schnarrenberger on 10 October 2016 in Berlin.

13 Who were the staff ?

Senior staff at the Federal Ministry between 1950 and 1963 who were tainted by their Nazi Party and/or SA membership. 51 % 29 % 76 % 33 % Nazi Party SA Nazi Party SA

Source: The book “Die Akte Rosenburg” (“The Rosenburg Files”), page 263 1950 1957

14 Who were THE MINISTRY’S PERSONNEL: BRILLIANT LAWYERS – the staff ? OFTEN WITH A DARK PAST “The Federal Ministry of Justice is regarded as the best-quality ministry in Bonn. It has staff of exceptional quality and with an exceptional willingness to serve our democratic system.” , Federal Minister of Justice, 1965

55 % 22 % Nazi Party SA

1963

“When I was called to the Federal Ministry of Justice on 1 November 1962, I entered an institution where ‘old hands’ had been at their desks for 10 years or more, all top experts, often the leading authorities in their field. (…) So understandably, it was with a ‘shiver of awe’ that I entered this circle.” Erich Corves, Head of Directorate, BMJ, 1991 15 2 THE STAFF AT THE FEDERAL MINISTRY OF JUSTICE IN 1957 MINISTER Schäffer

Personal Assistant Messerer Director of the Ministerial Office Internal Audit Unit Hage (until further notice) Butennandt State Secretary Dr. Strauß Press Office Representation in Berlin Thier Sünner

Directorate- Directorate- General I General II Civil Law and Criminal Law and Proceedings Proceedings

Directorate-General Z Directorate I A Directorate I B Directorate II A Administration Division I 7 Dr. Richter Dr. Erdsiek Professor Bülow Dr. Schafheutle

Division Z 1 Division Z 4 Division I 1 Division I 6 Division II 1 Division I 9 Division II 2 Elsenheimer Erdmann Dr. Saage Dr. Marquordt Dr. Dreher

Division Z 3 Division Z 5 Division I 2 a Division I 8 Division II 1 a

Dr. Winners Groth Dr. Weitnauer Dr. Böhle-Stamschräder Dr. Schwalm

Division Z 6 Division I 2 b Division II 1 b Division I 10 Brandl Riedel Dr. Tröndle

Division Z 7 Division I 3 Division II 3

Dr. Zorn Dr. von Spreckelsen Dr. Lackner

Division I 4 Division II 4

Massfeller Dr. Dallinger

Division I 5 Division II 5 Division I V 9 Dr. Knopp Schölz

Division II 6

Dr. Goßrau Directorate- Directorate- General III General IV Commercial and Public Law Economic Law

Directorate II B Directorate III A Directorate III B Directorate IV A Directorate IV B Division III 1 Division IV 6 Dr. Kanter Dr. Geßler Dr. Joël Roemer Dr. von Arnim

Division II 9 Division III 2 Division III 6 Division IV 1 Division IV 7

Dr. Kleinknecht Dr. Franta Ebersberg Dr. Maassen Dr. Lohse

Division II 9 a Division III 3 Division III 7 Division IV 2 Division IV 8

Dr. Lüttger Dr. Caspers Hill Dr. Jung Dr. Wilhelm

Division II 10 Division III 4 Division III 8 Division IV 3 Division IV 10 Division III 9 Dr. Grützner Dr. Fleischmann Dr. Haertel Bertram Dr. Bergmann

Division II 11 Division III 5 Division IV 4 Division IV 11 Division IV 5 Dr. von der Linden Professor Rinck Wohlfarth Sonnabend

Division II 12

Schmatloch

Division II 7 Division II 8

Dr. Herzog Wahl THE ORGANISATION CHART SHOWS THE STAFF ABBREVIATIONS: STRUCTURE AT THE FEDERAL MINISTRY OF NSDAP: National Socialist JUSTICE IN 1957. German Workers Party NSRB: National Socialist Association THE STAFF WHOSE NAMES APPEAR WITH A GREY of German Legal Professionals BACKGROUND WERE MEMBERS OF THE NAZI PARTY SS: – Nazi Defence Unit OR ITS SUB-ORGANISATIONS BEFORE 1945, SA: – Brownshirts BL: Blockleiter – block leader* AND THOSE WHOSE NAMES APPEAR ON A DARKER BACKGROUND WERE SERIOUSLY TAINTED BY * Blockleiter were Nazi Party functionaries who oversaw whether the residents of a INVOLVEMENT WITH THE NATIONAL SOCIALIST housing block followed political instruc- REGIME. THE NAMES OF POLITICALLY UNTAINTED tions. MEMBERS OF STAFF ARE SHOWN AGAINST A WHITE ** Special Courts were Nazi courts that dealt specifically with political crimes. BACKGROUND.

NSRB “Person of mixed As a Munich attorney, he was involved in the execution of death sentences on race first-degree” political prisoners. Untainted

NSRB NSDAP + NSDAP + NSRB As General Judge in occupied Denmark, he SA-Scharführer was involved in passing 103 death sentences. Dr. von Arnim Roemer Dr. Joël Dr. Geßler Dr. Kanter

NSDAP + NSRB + SA-Sturmführer NSDAP NSDAP Personal Assistant to Reich Minister of NSDAP + SA + NSDAP + SA + Justice Otto Thierack NSRB NSRB Dr. Lohse Dr. Maassen Ebersberg Dr. Franta Dr. Kleinknecht

NSDAP + SA + NSDAP + SA+ BL + NSDAP + SA NSDAP + SA + BL + NSDAP + SA NSRB NSRB NSRB Dr. Wilhelm Dr. Jung Hill Dr. Caspers Dr. Lüttger

NSRB NSDAP + NSRB NSDAP + NSRB NSDAP + NSRB NSDAP + NSRB District Party Court Associate Judge Oberstabsrichter (Senior Staff ) Dr. Bergmann Bertram Dr. Haertel Dr. Fleischmann Dr. Grützner

NSDAP NSDAP + SA NSDAP + SS + NSDAP NSRB Sonnabend Wohlfarth Professor Rinck Dr. von der Linden

NSDAP + SA

Schmatloch

Untainted NSDAP + NSRB

Wahl Dr. Herzog THE STAFF MARKED WITH A BLUE TRIANGLE IN THE TOP RIGHT-HAND CORNER WORKED AT THE REICH MINISTRY OF JUSTICE BEFORE 1945. Untainted Schäffer

Untainted Messerer

NSDAP + SS + BL + NSRB NSDAP + SA Rottenführer Butennandt Hage Persecuted on grounds of race Dismissed from judicial service in 1935 Untainted NSDAP + NSRB Dr. Strauß Sünner Thier

“Person of mixed Applications for race first-degree” admission to the Untainted NSDAP + NSRB

NSDAP + NSRB Untainted Dr. Richter Dr. Schafheutle Professor Bülow Dr. Erdsiek

NSDAP + NSRB NSDAP + NSRB + NSDAP + BL + NSRB NSDAP NSDAP + SA + BL + NSRB Public Prosecutor at the Special Court Participant in the follow-up conference to the so- Worked at the Special Court ** Innsbruck** SA Oberscharführer called Wannsee Conference on the “Jewish question” Dr. Dreher Dr. Marquordt Dr. Saage Erdmann Elsenheimer

NSDAP + NSRB + NSDAP + SA NSDAP + SA + NSRB NSDAP NSDAP + SA + NSRB Participant in the follow-up conference to the Wannsee Worked at the Special Court Bamberg** SA Scharführer Truppführer (troop leader) Conference on the “Final Solution of the Jewish Question” Dr. Schwalm Dr. Böhle-Stamschräder Dr. Weitnauer Groth Dr. Winners

Untainted NSRB Untainted

Dr. Tröndle Riedel Brandl

NSDAP NSDAP + NSRB Untainted

Dr. Lackner Dr. von Spreckelsen Dr. Zorn

NSDAP + NSRB Participant in the follow-up conference to the Wannsee Conference, NSRB + BL commentator on the Law for the Protection of German Blood Dr. Dallinger Massfeller

NSDAP + SA + NSRB NSDAP Oberfeldrichter (Senior Field Judge ) Schölz Dr. Knopp

NSDAP + NSRB

Dr. Goßrau Only the best?

3 20 Only THE FEDERAL MINISTRY OF JUSTICE’S the best? PERSONNEL POLICY BETWEEN 1949 AND 1963 © Federal Archive © Federal

02 RELIANCE ON “PROVEN PERSONNEL”

Adenauer in his government declaration of 20 September 1949: Dr. , Chancellor of the Federal Republic of Germany from 1949–1963 “We stand fundamentally and decidedly on the ground of the civil service. Much misfortune and much harm have been caused by . Those really guilty of the crimes committed in the Nazi period and during the war should be rigorously punished. But otherwise we should no longer put people into two categories: those who are politically irreproachable and those who are not irreproachable. This distinction must disappear as soon as possible.”

Excerpt from the government declaration by Konrad Adenauer on 20 September 1949 © Federal Archive

21 01 THE “FINAL Dr. Adenauer’s objective of integrating the DENAZIFICATION LAW” civil servants of the “Third Reich” in the new state was implemented in 1951. All former civil servants, judges, workers and employees of the Nazi state were given the right to be reemployed.

The following exceptions were made:

• those classified as “main offenders” or “offenders” in the denazification pro- cess. Across all the zones of occupation, this applied to only 1.4 percent of all the people vetted, of whom 1,071 were civil servants.

• former members of the Gestapo or Waf- fen SS. An exception was made if they had taken on this activity “against their will”, however. Since this was assumed even if they had consented to the trans- fer – which was almost always the case – members of the Gestapo and Waffen SS also had a right to reemployment.

As a result of the law, the BMJ and its area of competence increasingly employed people who had previously worked as civil servants in the Nazi period.

29.7 % 53 % Civil servants of the Civil servants of the former Nazi regime former Nazi regime

IN 1951, 267 OF 900 POSTS WERE AS A RESULT OF THE LAW, THIS NUMBER OCCUPIED BY PEOPLE WHO INCREASED FURTHER. IN 1953, 513 OUT HAD BEEN CIVIL SERVANTS IN OF 968 POSTS WERE OCCUPIED BY THE NAZI PERIOD. PEOPLE WHO HAD BEEN CIVIL SERVANTS IN THE NAZI PERIOD.

22 03 WALTER STRAUSS’ PERSONNEL POLICY Dr. Walter Strauß – who was himself persecu- ted by the Nazis - was responsible for the BMJ’s personnel policy between 1949 and 1963. He held the office of State Secretary in the Ministry of Justice under six Ministers of Justice. His personnel selection emphasised candidates’ specialist legal skills. © Federal Archive © Federal

Dr. Walter Strauß, State Secretary at the Federal Ministry of Justice (BMJ) from 1949–1963

“People with the qualifications for such ministerial service are a relatively limited resource at all times (...). An administration can only perform such tasks (...) if it succeeds in recruiting the best men. (...) The decision should be based only on objective qualifications.” Walter Strauß: memorandum of 12 August 1947

23 Strauß consciously relied on jurists tainted 01 by their Nazi involvement. He passed conspicuously lenient judgement in NAZIS OR DEMOCRATS? particular on ministry officials: STRAUSS’ VIEW OF “Certificates of good NAZI CIVIL SERVANTS standing (Persilscheine) were unavoidable”. Walter Strauß, 1976. “It was said that members of the civil service had nothing to set against National because, for lack of political expertise, they did not have the Socialism (...) sense of orientation and because in many cases they were outstanding technicians in their specialist fields - perhaps a specific German quality (...). Nominally, the vast majority in the higher echelons of ministerial bureaucracy maintained (…) their negative attitude towards National Socialism (...). A large majority, however, (…) simply carried on cooperating on the basis of this misguided technical attitude.” Walter Strauß, Parliamentary Council, Main Committee Meeting held on 23 February 1949

The “tough vetting” of staff with regard to their Nazi past that Strauß retrospectively 02 claimed had taken place did not take place in the 1950s. Only after 1965, after Strauß had left the HOW WALTER STRAUSS Ministry, was a regular enquiry made to the Berlin Document Center, where the Nazi DEALT WITH PEOPLE TAINTED Party membership file was kept, when new appointments were made. Strauß had already BY NAZI INVOLVEMENT: been aware of key biographical data about staff from the personnel files back in 1949, THE GESSLER CASE however. The way in which he dealt with these data shows that he felt even extreme Nazi involvement, such as that of Dr. Ernst Geßler, to be unproblematic, and that he even strongly relativised it. “However, tough This is shown in his statement on the case of political vetting Dr. Ernst Geßler, a senior civil servant at the took place, particularly BMJ. When in 1950, he was to be promoted at that development stage.” to the position of Ministerialrat, the Federal Walter Strauß, Stuttgart 1976 Ministry of the Interior expressed its reser- vations. Geßler had been a member of the Dr. Ernst Geßler worked in Nazi Party since 1933, a Rottenführer in the Reich Ministry of Justice the SA and had held the senior position of until 1945 and Oberregierungsrat in the Reich Ministry of from 1949 in Justice until 1945. the BMJ. Statements that were to be interpreted as anti-Semitic were also attributed to him. Al- though Strauß was aware of some of these statements, he attached no great importance to them. 24 03 THE NAZI THE NAZI INVOLVEMENT OF INVOLVEMENT OF 170 SENIOR STAFF AT THE BMJ BMJ STAFF BETWEEN 1949 AND 1973

53 % 3.5 %

Members of the 20 % Members of the SS Nazi Party

Members of the SA Strauß pursued a personnel policy that led to a considerable number of personnel who had been involved with the Nazis being in- tegrated into the BMJ. However, he did not instigate any targeted integration of people persecuted by the Nazis in senior positions, although presumably this would have easily been possible. Thus, in 1949, there were on the one hand 67 planned civil service appointments at the BMJ, and on the other 574 Jewish lawyers who had worked in the judicial system and had been thrown out of office after 1933. In Prussia, another 205 non-Jewish judicial officials had been dismissed on political grounds. Figures from Lothar Gruchmann, Justiz im Dritten Reich 1933-1940, Munich, 1987

25 Statement by Dr. Walter Strauß concerning Dr. Ernst Geßler, 3 October 1950

26 27 28 Drawing a line under the past instead of dealing with the past? THE FEDERAL MINISTRY OF JUSTICE AND ITS HANDLING OF NAZI CRIMINALS 01 DRAWING A LINE UNDER THE PAST MENTALITY In 1945, the Allies and the West German judiciary had quickly begun to bring Nazi criminals to justice. Yet the Germans’ will to deal self-critically with the past soon slackened. In the judiciary, former Nazi judges returned to their posts and in society at large, the dominant mentality was to “draw a line under the past”. The BMJ was involved in these developments in a number of ways. In the 1950s, the Ministry drafted two amnesty laws and in the 1960s, the BMJ was increasingly confronted with the Nazi past of its staff and advocated their exoneration.

29 4 02 ZEITGEIST In the 1949 election campaign, many political parties advocated putting an end to denazification.There was a wide- spread desire for an amnesty, not only on the political right, but across the political centre and into the milieu of the SPD (Social Democratic Party of Germany).

FDP election poster for the election to the Bundestag, 1949

30 03 ADENAUER’S PLANS FOR AN AMNESTY

Excerpt from the government declaration by Konrad Adenauer on 20 September 1949 © Federal Archive © Federal Archive © Federal Dr. Konrad Adenauer (left) is sworn into office by Dr. Erich Köhler, President of the German Bundestag, as the first Chancellor of the Federal Republic of Germany. Bonn, 20 September 1949.

From the beginning, the first Federal Chancellor Konrad Adenauer linked his assumption of government office with his “The war and also the turmoil of the post-war will for an amnesty. His aim in so doing period have brought such a hard test for so many was to strengthen confidence in the new people and such temptations that one has to show state. In his first government declaration of 20 September 1949, he underlined: understanding for some wrongdoings and offences. The question of an amnesty will therefore be examined by the Federal Government”.

04 1949 AMNESTY The first Federal Law drafted by the Federal Ministry of Justice in 1949 was the “Amnesty Law”. Its main purpose was to deal with black market and property offences committed between May 1945 and 1949.

31 02 ... AND 1954 01 In 1954, a second Amnesty Law came into force. It covered all offences committed THE AMNESTIES after 1 October 1944 for which a prison sentence of less than three years had been OF 1949 … imposed or was threatened. That enabled Already in 1949, black marketeers and crimes typical of the final phase of the war people who stole to make ends meet to go unpunished, for example the exe- were not the only ones to benefit from cution of “deserters” or crimes against the amnesty. All prison sentences of up to prisoners of war. The law also amnestied 6 months and fines of up to DM 5,000 were anyone who “for political reasons” had amnestied. Nazi perpetrators convicted concealed their civil status. This benefited of assault or membership of criminal Nazi perpetrators who had assumed organisations (SS, Gestapo, SD, Führerkorps a false identity after 1945 in order to of the NSDAP) were among those benefiting evade prosecution. The law symbolised from the amnesty. the attitude in West German society of “drawing a line under the past”; it was the political signal to the judiciary to end the prosecution of Nazi crimes.

Sentences

2011 2000 Sentences passed by West German courts 1800 between 1945 and 1959 for Nazi crimes 1600 1474 1400 1200 1000 900 800 743 600 400 257 262 200 172 114 25 46 15 25 29 20 12 Year 1945 1946 1947 1948 1949 1950 1951 1952 1953 1954 1955 1956 1957 1958 1959 Figures based on: Andreas Eichmüller, Die Strafverfolgung von NS-Verbrechen seit 1945. In: Vierteljahreshefte für Zeitgeschichte 2008, issue 4, p. 621 (p. 626)

32 03 A MODEL OF PERSONNEL-BASED 04 CONTINUITY THE DEPORTATION OF Max Merten worked at the Reich Ministry of Justice from 1938 to 1942 and had 50,000 GREEK JEWS processed enforcement law. In spring 1952, he was employed by the Federal Ministry TO AUSCHWITZ of Justice and once again took up the post In autumn 1952, the Greek Public of Head of Division on Enforcement. With Prosecutor General handed over a list regard to his activities during the war, of wanted war criminals to the German Merten had previously stated that he had authorities: it included the name Max been a war administration counsellor in Merten. Merten was said to have extorted Northern Greece. In a detailed curriculum considerable assets from Greek Jews in vitae, he had presented himself to the BMJ the Thessaloniki region by making false as the rescuer of some 13,000 Greek Jews. promises for their protection and later to have signed the decisive orders for their “resettlement”. Some 45,000 to 50,000 people were subsequently deported to Auschwitz and Bergen-Belsen; most were murdered. Having evidently been con- fronted with the Greek investigations by his superiors, Merten asked to be dismissed from the BMJ a few days later. He left the service – there were no criminal law consequences for him. © ullstein bild Max Merten, 1941

05 A HELPING HAND

FOR A COLLEAGUE © ullstein bild Max Merten’s handcuffs are removed at the beginning (WAR CRIMINAL) of the trial in the Athens courtroom in March 1959. Max Merten was so sure that he would not be held accountable for his actions that in spring 1957 he returned to Greece. To his The BMJ then demonstrated a remarkable great surprise, he was arrested and sentenced willingness to act on behalf of the war to 25 years’ imprisonment by a special criminal and former colleague. Ernst Kanter, military court for war criminals in Athens. Head of the Criminal Law Directorate at the BMJ, travelled to Athens himself to make Merten’s case – and was successful: Just 8 months after his conviction, Merten was handed over to Germany where, within a few days, he was released by the German judiciary.

33 Should murder be subject to a statute of limita- tions?

34 Should murder be subject to a THE FEDERAL MINISTRY OF JUSTICE AND THE STATUTE OF LIMITATIONS FOR NAZI CRIMES

statute of 01 limita- DEBATES ON THE STATUTE OF LIMITATIONS tions? In the early 1960s, a debate began in the Federal Republic of Germany on the statute of limitations for Nazi crimes. Under the Criminal Code, manslaughter offences were to be statute-barred from 8 May 1960 and murders were to be statute-barred from 8 May 1965. In spring 1960, the SPD (Social Democratic Party of Germany) advocated enabling the judiciary to prosecute these offences for a few more years. The Federal Ministry of Justice strongly objected. The In 1965, however, a majority in the Bundestag Bundestag rejected the SPD’s applications advocated a longer period within which and the manslaughter offences became Nazi murderers could be prosecuted. In an statute-barred. impressive speech, , a young Bundestag deputy, had convinced many parliamentarians in favour of an extension.

Report on Ernst Benda on the In 1979, the statute of limitations was statute of limitations debate, finally abolished in cases of murder. Thus, UFA-Wochenschau 45171965, 16 March 1965 perpetrators in Nazi extermination camps can still be tried today.

35 5 Fritz Schäffer, Federal Minister of Justice: “I am convinced that the German people and the German legal system have already done the best that is possible to prosecute the crimes committed It is my conviction that today, there is no longer © Bundesregierung during the Fritz Schäffer, a danger that any major matter in this field Federal Minister of Justice remains undiscovered and therefore threatened 1957–1961 Nazi period. by the statute of limitations.” German Bundestag, 24 May 1960

The statute of limitations debate was revived in 1965 when murders from the Nazi period threatened to become statute-barred. The Federal Minister of Justice was now , who from 1931 had been a member of the National Socialist Schoolchildren’s League, had been awarded the Golden Party Badge of the Hitler Youth organisation and in 1937 had joined the Nazi Party. Once again, the Ministry and the Minster opposed a longer period of prosecutability for Nazi murders.

Ewald Bucher, Federal Minister of Justice: “The exceptional situation referred to as the Third Reich has already been taken into account in that our judiciary has suspended the limitation period for specific Nazi crimes for the entire duration of the

© Bundesregierung Nazi regime. That is something.“ Ewald Bucher, Der Spiegel no. 5/1965 Federal Minister of Justice 1962–1965 When Jewish organisations in New York demonstrated against the impending statute of limitations, Ewald Bucher, Federal Minister of Justice, accused them of provoking anti-Semitism: “It should not be overlooked that these demon­ strations, mainly supported by Jewish organisations, could feed latent anti-Semitism in the world – after all, it is not just a German characteristic.” Der Spiegel, no. 5/1965.

36 Dachau concentration camp

02 © dpa Auschwitz concentration camp TODAY For a long time, many Nazi perpetrators could not be punished because their involvement in a specific killing in the

concentration camps could not be de- Archive © Federal monstrated. In 2011, the courts changed The victims of Nazi genocide in their view. the concentration camps

The proceedings against Gröning and Hanning represent a very late legal revaluation: anyone who kept the murder machinery going through their work in an extermination camp was an accessory to murder. © picture alliance/dpa © picture Reinhold Hanning in the courtroom in Detmold, June 2016 © Federal Government © Federal Reinhold Hanning in uniform as an SS Unterscharführer, © picture alliance/AP Photo alliance/AP © picture around 1943/1944 Oskar Gröning in court in Lüneburg, April 2015 © Federal Government © Federal Oskar Gröning in SS Unterscharführer Reinhold Hanning was SS uniform during his time in Auschwitz from deployed at Auschwitz and Sachsenhausen 1942 to 1944 concentration camps. In 2016, he was convicted by the Regional Court Detmold as an accessory to murder in 170,000 cases. SS Unterscharführer Oskar Gröning was deployed in Auschwitz concentration camp from 1942 to 1944 where he was responsible for administering prisoners’ money. In 2015, he was convicted by the Regional Court Lüneburg as an accessory to murder in 300,000 cases.

37 01 COLD AMNESTY In 1968, a limitation of Nazi crimes unintended by the legislator took place. Discussions continue to this day as to how this “limitation mistake” could have happened. It has often been suspected that Dr. Eduard Dreher, who was in charge of criminal law reform at the BMJ, sneaked this “cold amnesty” past the legislator. It may certainly be assumed that he was well aware of the consequences and knowingly did nothing. Dr. Dreher profited personally from the amendment since in 1968 he had to reckon on Dr. Eduard Dreher, who from 1943 to 1945 was First Public being called to account for his Nazi past. Prosecutor at the Special Court Innsbruck, was involved in passing many death sentences. From 1951 onwards, he was in the BMJ, his last position until 1969 being Head of Directorate Criminal Law. 23 SEPTEMBER 1968 Richard Sturm, Head of Division at the BMJ, passes on the information orally to his superior Dr. Eduard Dreher. Dreher does nothing.

26 SEPTEMBER 1968 Richard Sturm informs Dr. Dreher and the Head of Directorate-General Hans-Joachim Krüger in writing of the information from Rudolf Schmitt, a Judge at the Federal Court of Justice. Neither State Secretary nor Federal Minister of 1 OCTOBER 1968 Justice is informed of the problem. Thus, no attempt is made to The Introductory Act to the amend the act at short notice. Act on Regulatory Offences (Einführungsgesetz zum Gesetz über Ordnungswidrigkeiten­ – EGOWiG) comes into force.

Under the 16th Amendment to the German Criminal Code (Strafgesetzbuch - StGB) of 1979, the statute of limitations for murder was lifted in the cases of perpetrators and accomplices (accessories) for all offences not yet statute-barred before this date. Thus, today, Nazi crimes can be prosecuted.

38 03 THE EFFECT OF THE “STATUTE OF LIMITATIONS MISTAKE” “If special personal traits are lacking (…)” 02 From 1969, the Federal Court of Justice treated racial hatred as a DID DREHER MANIPULATE “personal trait”. THE SITUATION? 24 MAY 1968 “(…) in the case of The Bundestag adopts the Intro­ an accomplice” From the 1950s, people ductory Act to the Act on Regulatory who obeyed orders to kill Offences. It includes an amendment Jews were regarded as accomplices (accessories) to Section 50 of the Criminal Code. and not as perpetrators. The Act is to come into force on 1 October 1968.

“(…) the sentence shall be mitigated.” The sentence was now reduced. From now on, the 17 SEPTEMBER 1968 maximum sentence was 15 years’ imprisonment Rudolf Schmitt, Judge in the Fifth and not, as previously, life Criminal Senate of the Federal Court of imprisonment. In the legislative process, Justice, tells a member of staff at the BMJ a provision that reduced that the amendment to the Act could the maximum sentence without shortening the result in ongoing criminal proceedings for period of limitations is forgotten. Statute of limitations mistake Nazi crimes being stopped on account of Since offences subject to a maxi- mum sentence of 15 years’ im- the statute of limitations. prisonment had been allowed to become statute-barred on 8 May 1960, the crimes of all Nazi acces- sories to murder were statute- barred retroactively as of 1960 in one fell sweep.

04 20 MAY 1969 REVISED VERSION The Fifth Criminal Senate of the Federal Court of Justice decides that SECTION 50 II OF THE “base motives”, such as racial hatred, are special personal characteristics CRIMINAL CODE 1968 within the meaning of the new The following second paragraph was Section 50 II of the Criminal Code. inserted into Section 50 of the Criminal This means that all cases of being an Code: accessory to murder on account of racial hatred become statute-barred. “(2) If special personal characteristics, conditions or circumstances (particularly personal traits) are lacking in the case of an accomplice on which to establish the criminal liability of a perpetrator, his punishment shall be mitigated in accordance with the regulations on the punishment of an attempt.” 39 6 40 Prisoners of war or war criminals? THE “CENTRAL DIVISION FOR LEGAL PROTECTION TO GERMANS PROSECUTED ABROAD” IN THE FEDERAL MINISTRY OF JUSTICE OFFICIAL HELP AND WARNINGS FOR NAZI CRIMINALS

01 HELP FOR PRISONERS OF WAR It went without saying that the young Federal Republic of Germany would work committedly on behalf of former German soldiers held abroad as prisoners of war. However, former Nazi jurists in the Ministry used their knowledge about the whereabouts of “old comrades” to warn them of the threat of prosecution abroad. Thus, under the cloak of offering legitimate legal assistance, an efficient “early warning system” was set up, benefiting a large number of war criminals who had absconded abroad. How much did the Federal Government know about this secret dual function?

41 © akg-images Arrival of the last German prisoners of war in Friedland reception camp in October 1955: a mother searches for her missing son. © Federal Archive © Federal SPD poster appealing for the release of German prisoners of war, ca. 1947

42 02

02 THE FOUNDING OF THE CENTRAL DIVISION On 1 December 1949, the Bundestag passed a resolution to set up a Central Division for Legal Protection to Germans Prosecuted Abroad (Zentrale Rechtsschutzstelle – ZRS). Its task was to provide legal assistance for Germans being held abroad as prisoners of war or facing charges on account of their actions during the Nazi period.

Thomas Dehler, Federal Minister of Justice, to the Bundestag on 1 December 1949: © Federal Government © Federal Dr. speaking to the Bundestag

“The Federal Government recognises the need to provide legal protection for Germans detained and prosecuted abroad as a result of the war - not with a view (...) to granting protection to war criminals, but at least to do our part to grant these people the most primitive legal guarantees.”

03 THE LEADING FIGURES

Dr. Hans Gawlik took overall charge. Dr. Gawlik had been a public prosecutor in Breslau before 1945 and subsequently worked as counsel for the defence. He had experience of criminal trials and was the Director of the “Coordination Office for the Promotion of Legal Protection for German Prisoners Abroad” at the Länder Council in Stuttgart. © Federal Foreign Office Foreign © Federal Dr. Hans Gawlik, Head of the Central Division for Legal Protection to Germans Prosecuted Abroad from 1950 to 1968

43 01 “On the basis of the Ordonnance of August 1944 that was authoritative during the trials in POLITICAL (...), it is assumed that every member of an SS or SD unit or of the Feldgendarmerie TAILWIND is guilty, unless he proves that he was forced to join these organisations or was not involved in the act in question, proof that is practically impossible to provide. (…) I am only telling you this to show you how necessary it is Dr. Thomas Dehler, Federal Minister of Justice, for us to help the 1949 – 1953 defendants from here so that there is the possibility of adequate legal protection.” Thomas Dehler, German Bundestag, 1 December 1949

The French High Commissioner André François-Poncet accused the Central Division for Legal © Federal Archive © Federal Protection of systematically André François-Poncet, French High Commissioner to attempting to Germany from 1949 to 1953 “present those convicted as victims of Allied justice.” André François-Poncet: Letter to Adenauer of 2 July 1951

Adenauer replied to François-Poncet on 2 August 1951 in a letter largely drafted by Walter Strauß, State Secretary at the BMJ: “The Federal Government exercises its right and its duty through this department to grant legal protection to German citizens accused or sentenced by Allied courts for war crimes. (…).” © Federal Government © Federal Dr. Konrad Adenauer, Chancellor of the Federal Republic of Germany from 1949 to 1963

44 02 A FATAL CHOICE The choice of Dr. Gawlik as Director of the Central Division for Legal Protection proved fatal. From 1933, Dr. Gawlik had been a Nazi Party member and associate judge at the Nazi Gau Court in Lower Silesia. From 1942, he had worked as a public prosecutor at the special court in Breslau, where he had been involved in passing many death sentences. He was part of the Nazis’ politicised penal judicial system that imposed death sentences on supposed enemies of the regime for even the most trivial offences. The Central Legal Protection Division informed Nazi perpetrators that they After 1945, Dr. Gawlik had acted as defence had been convicted and were being counsel for Nazi criminals. He appeared at sought. The perpetrators reacted by the Nuremberg trials and later defended ZRS going underground, thus escaping Waldemar Hoven, an SS camp doctor at their punishment. Buchenwald concentration camp. Dr. Gawlik thus consistently used the opportunities of the Legal Protection Division to warn Nazi war criminals and protect them from punishment.

03 SECRET ADVICE Encouraged by the political tailwind, Dr. Gawlik operated in particular in the Western countries. Here there was more hope of achieving something on behalf of the perpetrators than in , Yugoslavia or the USSR. By mid-1950, 2,784 people, mainly convicted or wanted war criminals, were being advised. The Central Legal Protection Division developed into an instrument that protected Nazi perpetrators who were officially being sought. In 1953, Dr. Gawlik and his division were transferred to the Federal Foreign Office.

45 04 EXPOSED In 1968, “Der Spiegel” magazine made the activities of the Central Division for Legal Protection public.

GERMANY

about the affair,” said Dr. Kurt Wagner, Direc- WAR CRIMINALS tor of the Tracing Service, last week. WARNING SERVICE The affair began in 1949 when the Bundestag Has been informed passed a motion submitted by the CDU/CSU “concerning measures for Germans detained Bonn was searching for former SS Haupt- abroad as a result of the war”, and the Federal sturmführer (captain) Alois Ennsberger, aged Government set up a Central Division for Le- 53, for war crimes. In 1951, he was sentenced gal Protection, which was later affiliated with in absentia in France to 20 years’ imprison- the Federal Foreign Office. This was done, as ment and currently stands accused by Austria’s the then Federal Minister of Justice Thomas judiciary of murdering Jews. Dehler explained, “not with a view (...) to granting protection to war criminals, but at Bonn was searching for former SS Obersturm- least to do our part to grant these people the führer (senior assault leader) Heinz Pfanner, most primitive legal guarantees.” aged 55, for crimes including “premeditated killing”. In 1950, he was given two death sen- Since the mid-fifties, the Legal Protection Division tences in absentia by French military courts (annual budget for 1967: DM 440,000) had and a current arrest warrant for war crimes been headed by a lawyer well-versed in legal has been issued by the Viennese public pro- protection for war criminals: Dr. Johannes secution office. Gawlik, aged 62, who had defended mem- bers of Himmler’s SS at the Nuremberg trials. Bonn was searching for former SS Haupt- sturmführer (captain) and head of Eichmann Vienna, wrote to Federal Chancellor Kiesin- Gawlik’s office made sure that Germans ac- commandos, Alois Brunner, aged 55. After ger “with the greatest respect” that he fea- cused of war crimes abroad were given legal the war, he was given two death sentences red his “trust in the new Germany had been assistance. And it collected trial documents on in absentia for mass murder and is currently wrongly invested.” proceedings against war criminals, for example, on West German, Czech and Greek lists of to be able to warn Germans who had been wanted Nazi criminals. While Austrian Minister of Justice Hans sentenced in absentia, “so they do not travel Klecatsky ordered an immediate criminal unawares”, the Federal Foreign Office says But Bonn was searching for Brunner, Pfan- investigation of the Red Cross affair in his today, “anywhere where they will be arrested”. ner and Ennsberger not to make it possib- country, Bonn took a relaxed view of the ac- le to punish them, but to protect them from cusations. Foreign Office Spokesman Jürgen Between 1962 and 1964, for example, Gawlik punishment. Ruhfus said that the warning action was “not asked for lists of the names of 800 Germans a process deserving criticism”. And German sentenced in absentia by French courts, in- Germany’s Federal Foreign Office submitted Red Cross Tracing Service executives, who cluding former SS and SD men, to be sent to requests to the German Red Cross Tracing accused Wiesenthal in Vienna of committing him via “counsels of choice” (Federal Foreign Service to look for a total of 800 Germans “a crime against the idea of the Red Cross”, Office) of the German Embassy in Paris. But and Austrians sentenced in absentia by French had “an entirely clear Red Cross conscience because Gawlik, the defender of rights, did courts for war crimes in order to “advise not have the sentenced men’s home addres- (them) of difficulties they might run into ses, he was unable to effectively warn them abroad” (Federal Foreign Office). at that time.

The discretely-handled government action One of the men not warned was Heinrich (code-named “Warning Service West” by the Gaad, former driver of a company commander German Red Cross) that has recently come to from Altenkirchen in the Upper Lahn district, light has prompted new distrust towards Ger- who had been sentenced to death in absentia mans abroad. The Swiss newspaper Weltwo- by a military court in Metz shortly after the che sees this “monstrous scandalous story” as war for his involvement in the shooting of “probably the darkest chapter in Germany’s seven partisans and hostages in the Vosges coming to terms with the past”. The Vienna village of La Bresse. correspondent of the New York Times cabled to America that “secret Nazi organisations” When Gaad, meanwhile the driver of an had “infiltrated” the German and Austrian exhibition car of the Buderus iron works in Red Cross. Wetzlar, an Opel Blitz, stopped for an over- night break in the French city of Roanne on In a dispatch to Foreign Minister , 15 September 1964, the police arrested him the “Association of Persecutees of the Nazi in his hotel bed. Following Gaad’s acquittal Regime” protested “against preferential of involvement in the hostage shooting at a treatment and warning of Nazi criminals”. And new hearing after three months in custody, Eichmann hunter Simon Wiesenthal, Direc- his attorney complained to the Federal Foreign tor of the Jewish Documentation Center in Office of “a lack of care and protection

DER SPIEGEL, NO. 16/1968 51

Der Spiegel, “Ist benachrichtigt”, no. 16/1968.

46 GERMANY

for German citizens” and demanded com- The German Red Cross warnings evidently wanted persons through the German Red pensation because his client had not been also alerted war criminals wanted not only in Cross. The copies of the lists in Ludwigs- warned by the Legal Protection Division. France but also for other crimes in Germany burg include notes by the Federal Foreign and Austria. Simon Wiesenthal claims, for Office after some names, some written out In order to prevent similar future recourse example, that a “member of Eichmann’s staff” in full and some in shorthand, such as: “Has claims, Gawlik’s office asked the German living overseas for whom an arrest warrant been informed”. Red Cross Tracing Service to find the ad- had been issued in the Federal Republic of dresses of people who were in danger of Germany was probably deterred from retur- Confronted last week with these research find- prosecution in France in a file containing 10 ning to Germany, where the public prosecution ings by SPIEGEL magazine, the Federal million names. As a guide, Gawlik presented office was waiting for him, by a visit from the Foreign Office had to retract its spokesman’s the German Red Cross with an excerpt from German Red Cross to his German relatives. statement: The list was in fact “not initially the original French list of names. Unlike the sent to Ludwigsburg”. original list, this excerpt did not include the And Senior Public Prosecutor Adalbert Rü- rank, ground for punishment or sentence of ckerl, Head of the Central Office for the Inves- the 800 convicts. tigation of Nazi Crimes in Ludwigsburg, who only heard about the activities of the Federal Thus, the German Red Cross, claiming ig- Foreign Office/German Red Cross after the norance of the criminal acts of some of the event, said angrily: “If the German Red Cross people sought, promptly declared its will- warns people and ... gets their addresses or ingness to research the addresses. According information about their whereabouts of which to Joachim Leusch, Deputy Director of the we have not been informed, that would severely Bonn-based Tracing Service, “that is one of undermine our investigation interests”. our tasks in cases relating to the personal protection of citizens of the Federal Repu- It was only by accident that the “Warning blic of Germany”. Service West“ was made public. Names of wanted Austrians passed on confidentially Otto Ohlsen, Head of the Hamburg German by the German Red Cross to the Viennese Red Cross Tracing Service and a former ma- Red Cross were published inadvertently in jor in the Wehrmacht’s general staff, was in the Linzer Turm, a “newsletter of the front- charge of implementing the “Warning Service line fighters’ association of the 45th Infantry West”. Within nine months, 280 of the Division Linz and Wels”, under the heading addresses sought had been established, and “Red Cross Warns Wanted Austrians”. Said throughout the territory of the Federal Republic Thomas Leusch, Deputy Director of Bonn’s of Germany, German Red Cross local Tracing Service, of the Viennese blunder: “If association representatives had given an oral only we hadn’t given the Austrians the list.” warning to the men accused of committing crimes in France of making trips across the When Wiesenthal associates chanced upon Rhine – against receipt. this German Red Cross list of names in the bulletin, including that of Eichmann’s ac- One of the people found, for example, who complice Alois Brunner, a protest was raised. lives in Bonn, informed Joachim Leusch, De- Wiesenthal complained to the Austrian Minis- puty Director of the Tracing Service himself. ter of Justice about the Red Cross’s “flagrant A former war administration councillor, he act of aiding, abetting and favouring wanted had “requisitioned a few pigs” in Lyon during Nazi criminals”. the war, says Leusch, but had no idea that the French had later sentenced him for it. In Bonn, however, the Federal Foreign Office But whether they were responsible merely for rejected the accusation that it warned criminals requisitioning a few pigs or had been com- without contributing to their prosecution. In plicit in deporting Jews – those warned can late March, Federal Foreign Office Spokes- now rest assured that if they follow Federal man Ruhfus told journalists that when the Foreign Office advice they will never have Red Cross received the 800 convicts’ names to make amends for the crimes they commit- in order to warn them, the “same list was ted in France. simultaneously also made available to the competent German prosecution authorities According to a “transition agreement” conclu- ... through the Federal Ministry of Justice so ded in 1954 between Bonn and the Western that criminal proceedings could be brought Allies, the West German judiciary cannot against them”. prosecute any war crimes that have already been the subject of military court judgments That is not the case. The “competent” pro- or of investigative proceedings concluded secution authority, the Ludwigsburg Central by Allied prosecutors – even if it had never Office, only received copies of the original been possible to execute the foreign judg- French list after the Federal Foreign Office ment against the – absent – German accused. had had warnings issued to all the available

52

47 48 Convincing HANDLING OF ITS OWN PAST facade?

01 THE “SPIRIT” OF THE ROSENBURG The romanticism of the building rubbed off on the mood of the staff. They deliberately looked forward, not back. This attitude enabled past injustice to be ignored. This self-imposed amnesia stood in contrast to a demonstrative enthusiasm for the new start. It is reflec- ted in nostalgic memoires. Sometimes, however, the brown surface below the carefully applied whitewash became visible again. How did those who were exposed justify their actions?

49 7 In 1991, the BMJ Staff Council published a volume of reminiscences entitled “The Spirit of the Rosenburg. Memories of the Early Years of the Federal Ministry of Justice”. It made no mention of the Nazi past of many staff.

“It is a long time ago now, the founding era of the Federal Ministry of Justice (...). If those good old days of the Rosenburg are not to gradually fall into oblivion, the memories have to be put on paper (...).” From the preface to “Der Geist der Rosenburg”, 1991

50 “It was a pleasant, very lively time. (...) People came together for meals, not just at lunchtime. Many people also had their evening meal in the canteen. Back then, official hours of duty played no role. (...) To sum up, one can say: A lot of work was done, and done effectively.” Eduard Dreher, in: Der Geist der Rosenburg, 1991 “Free weekends had not yet and often even Sundays had been introduced to be used for official work.” Heinrich von Spreckelsen, in: Der Geist der Rosenburg, 1991

“In my view, the drive and energy of the Federal authorities and parliamentary bodies of that period can be explained mainly by the immense need for regulation and the will of all the staff to prove themselves in the unique opportunity to build the young republic. We all wanted to achieve something, we all wanted to prove our motivation to ourselves and to others.” Heinrich von Spreckelsen, in: Der Geist der Rosenburg, 1991.

02 SUPPRESS OR BE SILENT? Looking back, those involved presented the years in which the BMJ was accommodated in the sequestered, picturesque Rosenburg as a time of intensive joint work and the performance of duties. What is entirely lacking in the “spirit of Rosenburg” that is repeatedly invoked is a critical reflection of the years before 1945. People often knew each other from the Nazi years and knew about many colleagues’ Nazi involvement. The fact that people hardly discussed these years among themselves is interpreted Another socio-psychological interpretation partly as a collective suppression of the by Hermann Lübbe sees in this process a Nazi period and thus as a failed attempt “communicative silence.” People avoided to reestablish the state. an open critical discussion of National Socialism in order not to have to discuss people’s individual involvement.

51 01 LIVING A LIE? JUSTIFICATION STRATEGIES From the 1950s, the past of BMJ staff tainted by their Nazi involvement was increasingly revealed to the public. The people concerned had to answer 02 to the Ministry and the general public for what they had done. There were recur- “THE WAR WAS AN ring patterns of justification: EXCEPTIONAL SITUATION” 03

Dr. Eduard Dreher “I WAS ONLY

• 1943-1945: First Public Prosecutor at INVOLVED IN ORDER the Special Court Innsbruck TO PREVENT WORSE • He was involved in passing many death sentences for minor offences THINGS HAPPENING” Franz Massfeller Dr. Eduard Dreher • In 1959, the first case during the Nazi period came to light in which Dreher • Massfeller had worked in the Family Law had applied for the death penalty Division of the Reich Ministry of Justice between 1934 and 1943 • He invoked having complied with the established case law of the Reich Court • He wrote a commentary on the Nuremberg Race Laws

• In 1942, he took part in two follow-up conferences to the Wannsee Conference in which the topics of discussion were the dissolution of “mixed marriages” and forced The Basic Law had abolished the death penalty. sterilisation Yet in 1958, Dr. Dreher was still justifying the death penalty in wartime. • At the Wannsee Conference, the “Final Solution of the Jewish Question”, the genocide of the Jews of Europe, was “Indeed, the whole issue discussed changes quite fundamentally in wartime. (…) Life imprisonment definitely cannot be a substitute for the death penalty in this case. In wartime, when the whole nation is in mortal danger, deprivation of freedom is in itself a weak measure. This is particularly the case when the convicted person can expect to regain his freedom at the end of the war or even more than that, can expect a reward from a possibly victorious enemy.” Eduard Dreher: Für und Wider die Todesstrafe (For and Against the Death Penalty). In: Zeitschrift für die gesamte Strafrechtswissenschaft, volume 70, 1958, page 543 et seqq.

52 04 “I HAD ABSOLUTELY NO IDEA …” Heinrich Ebersberg

• From 1942, he was personal assistant to Otto Thierack, Reich Minister of Justice

• He was aware of countless judicial crimes committed by the Nazis, such as the failure to prosecute “euthanasia” murders or the “special treatment” of prisoners, leading to their death

• In 1969, the judiciary carried out investigations © US Army photographers on behalf of photographers Army © US OUSCCPAC/OCCWC Heinrich Ebersberg as a witness in against him as an accessory to the murder of the Nuremberg trials, 13 July 1945 prisoners

• The BMJ initiated disciplinary proceedings against him

• In 1970, the criminal proceedings against him were stopped on account of the statute of limitations due to the “cold amnesty” of 1968 “As a young person, I had no Franz Massfeller • Ebersberg lost his position as Head of influence on the then Reich Minister Directorate, however, but remained • Massfeller had worked in the Family Law of Justice, whose attitude was absolutely Head of Division Division of the Reich Ministry of Justice authoritarian.” Note by Heinrich Ebersberg, 1968 between 1934 and 1943 “It was clear that Hitler considered the measure • He wrote a commentary on the Nuremberg he ordered [euthanasia] to be lawful. Race Laws It would have been futile to try to persuade him otherwise.” • In 1942, he took part in two follow-up Hearing of Heinrich Ebersberg, 1967, p. 4, Hessian State Archive, department 631a (De- conferences to the Wannsee Conference partment of Public Prosecution Frankfurt am Main, no. 1753) in which the topics of discussion were the dissolution of “mixed marriages” and forced Excerpt from the supplementary sterilisation statement by Eduard Dreher of 6 November 1959 on the expert report by Schafheutle on Dreher’s • At the Wannsee Conference, the “Final collaboration in the criminal proceedings against Anton Rathgeber Solution of the Jewish Question”, the before the Special Court Innsbruck genocide of the Jews of Europe, was Excerpt from the official decla- discussed ration by Franz Massfeller of 25 May 1953 on his participation in the Wannsee follow-up conference Excerpt from the interrogation FRANZ MASSFELLER ON of Heinrich Ebersberg before the Public Prosecution Office Cologne of 15 December 1969, p. 5 of the Hessian State Archive, Division 631a HIS PARTICIPATION IN THE (Department of Public Prosecution Frankfurt am Main, no. 1753) WANNSEE FOLLOW-UP CONFERENCES: “A thoughtless word could easily have cost me my freedom, if not my life. (...) In any case, I and so many other gentlemen in the ministerial bureaucracy of the time tried to avert disaster with our weak resources without regard for our person.” Official declaration by Franz Massfeller of 25 May 1953 on his participation in the Wannsee follow-up conference.

53 54 Commentaries and medical and legal explanations on the Law for the Protection of German Blood and Marriage Health by Dr. med. Arthur Gütt, Dr. med. Herbert Linden and Franz Masseller, Head of Directorate, 1936

55 856 WHAT REMAINED OF Discrimi- NAZI LAW AFTER 1945? nation by

01 Not onlylaw did many of the legal personnel? of the Nazi regime remain in office in the CRIMINALISATION young Federal Republic – many laws also remained in force. Only evidently unjust OF HOMOSEXUALS laws were abolished or amended by the Allies and the Federal Republic.

In the Criminal Code in particular, Nazi influences remain to this day, for example in the sections on murder (Section 211 of the Criminal Code), the reform of which is still under discussion. The competent actors in the BMJ did too little to bring about a constitutional renewal of the laws.

In significant cases, they repeatedly ad- hered to the status quo, for example concerning the punishability of homo- sexuality. © mauritius images

National Socialism had an evident influ- ence on State Secretary Walter Strauß’ attitude to homosexuality. He favoured the strict punishment of homosexuals in the civil service who used their position to support homosexuals. To substantiate this view, Dr. Strauß referred to the Röhm Putsch of 1934. Nazi propaganda had presented the murder of Ernst Röhm and the SA leadership as the suppression of a supposed homosexual conspiracy.

State Secretary Walter Strauß at the meeting of the Grand Criminal Law Commission on “homosexual cliques”, 1958

57 1871 1945 Section 175 of the Criminal Code remains Section 175 of the Criminal Code in force unchanged. criminalises “unnatural fornication” between men. 1951/1967 On two occasions, the Association of German Jurists speaks out in favour of decriminalising homosexuality. Medical associations and the Grand Criminal Law Commission deployed by the BMJ also plead in favour of decrimi- nalisation. However, civil servants at the BMJ hold fast to punishability, also using argu- 1935 ments from the Nazi period. The Nazi regime strengthens Section 175, but in particular, the Reich Court changes its juris- 1969 prudence, enabling even acts involving no phy- Homosexual acts between adults are sical contact to be punished as “fornication”. decriminalised. Between 1945 and 1969, There is a dramatic increase in the number of approximately 50,000 men were sentenced homosexuals subject to criminal prosecution. under Section 175 of the Criminal Code. Number convicted

8271 8562 1994 8000 Discriminatory youth protection regulations 7000 in the legislation governing sexual offences are lifted and Section 175 of the Criminal 6000 5321 5000 Code is finally deleted. 4000 3000 2106 Act to Criminally Rehabilitate Persons Convicted of 2000 Consensual Homosexual Acts after 8 May 1945, 1000 948 and to Amend the Income Tax Act of 17 July 2017 Year 1934 1935 1936 1937 1938

People convicted under Section 175 The Bundestag has adopted the following Act with the consent of the Bundesrat: (2) Subsection (1) shall apply mutatis mutandis to committal orders issued by a criminal court. of the Criminal Code (3) The annulment of judgments pursuant to subsections (1) and (2) shall comprise all collateral Article 1 punishments and collateral consequences imposed therewith, as well as all measures of reform and Act to prevention that are not referred to in subsection (2). Criminally Rehabilitate Persons Convicted of Consensual (4) The proceedings on which the judgments Homosexual Acts after 8 May 1945 designated in subsections (1) and (2) are based (StrRehaHomG) shall be terminated.

Section 1 (5) The annulment of judgments pursuant to Annulment of judgments subsections (1) and (2) shall have no legal effects beyond the provisions of this Act. (1) Any person who has been convicted as a perpetrator of consensual homosexual acts is hereby rehabilitated through the annulment of criminal Section 2 2017 judgments that were issued on the basis of Partial annulment of judgments

1. sections 175 and 175a nos. 3 and 4 of the Criminal ((1) Where a judgment was also issued on the basis With the Act of 17 July 2017, Code, as in force in the Federal Republic of Germany of criminal provisions other than those designated in up to and including 31 August 1969 and after 8 May section 1 (1), the part of the judgment that was based 1945 in the territory that would later become the on the criminal provisions designated in section 1 (1) individuals who had been Federal Republic of Germany; shall be annulled. 2. sections 175 and 175a nos. 3 and 4 of the Criminal convicted of consensual Code, as in force in the German Democratic Republic (2) Subsection (1) shall apply mutatis mutandis to up to and including 30 June 1968 and after 8 May committal orders issued by a criminal court. 1945 in the territory that would later become the homosexual acts after 1945 German Democratic Republic; Section 3 3. section 175 (1) nos. 1 and 3 of the Criminal Code, as Declaration of annulment; were criminally rehabilitated: in force from 1 September 1969 up to and including certificate of rehabilitation 27 November 1973; 4. section 175 of the Criminal Code, as in force from (1) The public prosecutor’s office shall declare upon their judgments were annul- 28 November 1973 up to and including 10 June application whether a judgment is annulled pursuant to 1994; and section 1 (1). In cases pursuant to section 2 (1), the pub- led by law. Furthermore, they 5. section 151 of the Criminal Code of the German lic prosecutor’s office shall declare a partial annulment of Democratic Republic, as in force from 1 July 1968 the judgment as well as the extent to which the judgment up to and including 30 June 1989, is annulled. The public prosecutor’s office shall issue the are now entitled to monetary applicant with a certificate of rehabilitation concerning unless the convictions were based on sexual acts with the declarations issued pursuant to sentences 1 and 2. persons under 16 or acts that fulfil the requirements of compensation for suffering the offences described in sections 174, 174a, 174b, 174c (2) In order to obtain a declaration pursuant to the stigma of a criminal or 182 of the Criminal Code, as in force on 22 July 2017. subsection (1) sentences 1 and 2, it shall generally record and the deprivation of liberty associated with their criminal judgments. 58 02 STOCK CORPORATION LEGISLATION The continuation of Nazi law was not limi- ted to criminal law. In supposedly political- Quotation by Ernst Geßler on the Stock ly less highly charged areas such as civil and Corporation Act, 1937 commercial law, the Federal German legis- lator followed the law of the Nazi period. An example is the Stock Corporation Act of 1937 with its decision to strip the general meeting of shareholders and the super- “The Board has to manage a company visory board of their powers and to give on its own responsibility as required the Executive Board practically unlimited to ensure the well-being of the opera- management powers. tions and their supporters and the general benefit of the people and the Reich.” (Section 70 (1), Stock Corporation Act of 1937)

This wording allowed large companies to be controlled in the interests of Nazi ideology, particularly the war economy. The legislator of 1937 distrusted shareholders and the supervisory boards elected by them. “Operation managers” were to have their say. Stock corporation legislation shows the After 8 May 1945, the Stock Corporation Act connection between personnel-based and of 1937 remained in force for another twenty content-based continuities. Dr. Ernst Geßler years. Even today, shareholders and super- was in charge of stock corporation legisla- visory boards have very weak codetermi- tion at the BMJ for years. He had previously nation rights. collaborated on the reform of the Stock Corporation Act of 1937 at the Reich Minis- try of Justice. Geßler remained distrustful of the effectiveness of democratic decisions in companies.

Inconsistency in dealing with the Nazi past: © bpa

Dr. Ernst Geßler, stock corporation law expert and former Nazi Party member, is handed the Order of Merit of the Federal Republic of Germany by , Federal Minister of Justice. During the Nazi period, Jahn was deemed to be a “half-Jew”; his mother was murdered in Auschwitz concentration camp. 59 Georg Petersen before the Reich Court, 1940: “In any case, the (...) general basic idea taken from the racial policy laws must be taken into account to eliminate the Jewish influence from German business.”

01 02 THE FEDERAL COURT OF GEORG PETERSEN: JUSTICE AND THE BMJ: FROM LOOTERS’

KINDRED SPIRITS? COUNSEL TO

The BMJ and the judiciary were closely DIRECTOR-GENERAL linked. The Ministry contributed to the selection of judges at the Federal Court AT THE BMJ of Justice. Conversely, many BMJ staff had previously worked in the judiciary. On the opening of the BMJ in 1950, There was also a high level of continuity Petersen invoked the “tradition of the with the Nazi judiciary at the Federal Court Reich court” as a role model. As an example, of Justice. Of the judges working at the he stated that even in the Nazi period, the Federal Court of Justice in 1962, 77 per cent Reich Court’s decision-making yardsticks had had previously worked in the Nazi judiciary. been “good faith” and “common decency”. As a result, little distance was created in A problematic resource, since these unde- the BMJ from the jurisprudence of the fined legal terms enabled Nazi ideology to be Reich Court, which closed in 1945. Georg superimposed on existing regulations, there- Petersen, the first Director-General for Civil by systematically depriving opponents and Law at the BMJ, is a striking example. persecuted people of their rights.

60 03 THE FEDERAL COURT OF JUSTICE AND THE “GYPSIES” A residue of Nazi racial ideology is also to be found in the jurisprudence of the Federal Court of Justice in connection with the compensation of Sinti and Roma. In 1956, the Federal Court of Justice rejected such “Since the Gypsies have largely resisted settlement and claims because it was said that “Gypsies” thus adaptation to the settled population, they are re- were not taken away to the concentration garded as antisocial. Experience shows that they have camps purely on racist grounds. a tendency towards crime, particularly theft and fraud, and often lack the moral motivation to respect other people’s property because, like primitive prehistoric people, they have an uninhibited inherent urge towards occupation. (…) The purpose of all public authority measures (…) was not to persecute Gypsies specifically The Federal Court of Justice even justified a on account of their race, but to protect the rest of circular from , the Head society from their socially damaging actions based of the SS, of 8 December 1938. In particular, on strange group traits. (...)” it said, this circular indicated Judgment by the Federal Court of Justice of 7 January 1956 “that in spite of the occurrence of racial ideology aspects, it is not race as such that is the reason for the orders given, but the Gypsies’ antisocial The Fourth Rosenburg Symposium of the referred to before.” characteristics Federal Ministry of Justice and Consumer Protection in October 2014 prompted the Federal Court of Justice to subject its “Gypsy” jurisprudence to critical examination. One of the victims of this Federal Court of Justice judgment was Nikolaus Pfeil. He was German and, 04 in the Nazi jargon, “of mixed German and Gypsy blood”. In 1940, he had been arrested on account THE VICTIMS’ of his background and taken to occupied Poland. There he had survived in ghettos and forced CONCERNS: labour camps under conditions similar to those in concentration camps until his liberation in 1945. OVERLOOKED After pursuing his case through the courts for years, it went to the Federal Court of Justice for an AND IGNORED appeal on points of law in 1955.

Pfeil wrote to the Federal Court of Justice: “The legal action for payment of my compensation On 7 January 1956, the Federal Court of Justice for wrongful imprisonment has been under way refused compensation. Only in 1963 did the court for a very long time. I am seriously ill and have revise its legal opinion, but without renouncing an invalidity rating of 80 percent; I also am of the underlying view that “Gypsies” had a tendency an advanced age. Since I have been waiting for towards crime. Meanwhile, Nikolaus Pfeil had died. ten years now, I would like to kindly request On 12 March 2015, Bettina Limperg, President the Federal Court of Justice to accelerate my of the Federal Court of Justice, distanced herself proceedings and not to keep me waiting so unequivocally from this jurisprudence on the long for the judgment. Thank you very much in occasion of a visit to the Central Council of advance.” German Sinti and Roma.

61 9 62 No End to History THE CURRENT MINISTRY’S HANDLING OF ITS OWN PAST

“There is no end to history. Even today, there are dangers to humanity and freedom that jurists, in their respective positions, have to resist. A knowledge of history can sharpen people’s senses when human rights and the rule of law are being called into question again. In order to reinforce this ethos, the injustice caused by German jurists should be a compulsory subject in jurists’ training.” Excerpt from the speech by Heiko Maas, former Federal Minister of Justice and Consumer Protection © photothek.net/ © photothek.net/ Thomas Koehler Event on the presentation of the book “The Rosenburg Files” at the Federal Ministry of Justice and Consumer Protection

63 01 CONSEQUENCES “The Rosenburg Files” showed the failures of the past. Now consequences have to be drawn for the present.

For much too long, jurists in Germany understood themselves to be apolitical legal technicians; this attitude made many of them accomplices of Nazi injustice. Today, jurists should live and defend the values of the Basic Law – human dignity, individual freedom and social diversity. In order to further strengthen this ethos, Nazi injustice should become an obligatory The Federal Ministry of Justice has subject of legal training. launched a new in-service training pro- gramme and has commissioned a study of its official building in Berlin. As part of Berlin’s Jewish textile-making district, many of its former owners and users were murdered in the Holocaust. All the Ministry’s employees should be aware of this past and of the responsibility each and every one of them has for a free state under the rule of law.

The work on “The Rosenburg Files” was accompanied by many public symposia. These events and this exhibition are

© Stephan Klonk © Stephan intended to encourage other institutions Today, the headquarters of the Federal Ministry of Justice and Consumer Protection are on Hausvogteiplatz in Berlin. also to deal with their own past and to ask what each of us can do today to protect human dignity, freedom and diversity.

Further information on the Rosenburg Project is available at: www.bmjv.de/rosenburg

64 02 SELF-CRITICISM “The Rosenburg Files” also prompted many older people to ask themselves self-critically how they dealt with the Nazi contamination of leading jurists in the past. Dr. Hans-Jochen Vogel was Federal Minister of Justice from 1974 to 1981. In late 2016, he gave his opinion on camera on his own responsibility and the consequences of the historical findings:

Excerpts from an interview with Dr. Hans-Jochen Vogel, former Federal Minister of Justice, 2016 © picture-alliance/ dpa © picture-alliance/ Dr. Hans-Jochen Vogel, Federal Minister of Justice 1974–1981

AND WHAT LESSONS DO YOU

65 LEARN FROM HISTORY? 1957 THE BEGINNING OF THE GDR’S BROWN BOOK CAMPAIGN

During the Cold War, the GDR collected a great deal of material against war criminals and Nazi perpetrators in the Federal Republic of Germany. Between 1957 and 1968, the GDR published a number of so-called “Brown Books”, in which it publicised the Nazi past of the West German political, business, legal and academic elites. Initially dismissed as Communist agitation, the accusations generally turned out to be correct and also aroused inter- national attention. The revelations led to the resignation of Federal Public Prosecutor General Ludwig Fränkel and Table of contents and preface Hans Krüger, Federal Minister of Displaced Persons. to the “Brown Book. The West German authorities reacted, more frequently War and Nazi Criminals in ”, Berlin 1965 requesting information on senior officials from the Berlin Document Center, where the Nazi Party membership file was kept.

Albert Norden, Member of the Politburo of the Central Committee of the Socialist alliance/dpa/ZB © picture Unity Party of Germany (SED) and author of the Brown Book, here in 1962

66 © Südwest Presse Ulm, photographer H. Sander H. photographer Ulm, Presse © Südwest

The accused Edwin Sakuth, Harm Harms and Bernhard Fischer-Schweder during the Ulm 1958 ULM Einsatzgruppen trial, 1958 EINSATZGRUPPEN TRIAL

Between April and August 1958, the first trial before a German jury court in connection with the Nazi mass murders of Jews took place in Ulm. The accused were ten members of a task force that had killed more than 5,000 Jewish men, women and children in the German-Lithuanian border area in 1941.

Public knowledge of these crimes brought about a change in the public mood. In an opinion poll carried out in West Germany before the judgment, 54 % of those polled were in favour of punishing Nazi crimes. In view of the fact that the previous dominant view had been to reject denazification and Allied trials, it is likely that a much lower number would have been in favour in an earlier poll.

Spiegel, no. 28/1979 © Südwest Presse Ulm (if any third-party rights third-party Ulm (if any Presse © Südwest the publisher) contact please been infringed, have Journalists and observers in court during the Ulm Einsatzgruppen trial, 1958

67 1958 FOUNDING OF THE CENTRAL OFFICE OF THE LAND JUDICIAL ADMINISTRATIONS FOR THE INVESTIGATION OF NATIONALIST SOCIALIST CRIMES IN LUDWIGSBURG In response to the growing public pressure following the Ulm Einsatzgruppen trial, the “Central Office for the Investigation of National Socialist Crimes” was set up. Its task is to carry out preliminary investigations on the basis of which public prosecution offices can bring charges against Nazi criminals.

7,600 preliminary investigations have been carried out since 1958. In all, the West German judiciary has investigated more than 120,000 suspects, but only about 2,000 were convicted. The Central Office is still in operation today. In 2016 it launched 30 new preliminary investigations into offences including crimes committed in Stutthof, Auschwitz and Flossenbürg concentration camps.

Central Office of the Land Judicial Administrations, exterior view © Central Office of the Land Judicial Administrations for the for Administrations of the Land Judicial © Central Office Ludwigsburg Crimes, of Nazi Investigation

68 Excerpts from: Millionen Morde. Ein ruhiges Städtchen. Zwei alte Generale. Ludwigsburg und die Zentrale Stelle zur Verfolgung von NS- Verbrechen. Documentary film by Jochen Faber, approx. 90 minutes, D 2008 © Central Office of the Land Judicial Administrations of the Land Judicial © Central Office Ludwigsburg Crimes, of Nazi the Investigation for

Central Office in Ludwigsburg, exterior view

The central file comprises some 1.7 million cards with data on suspects

Pupils visit the Central Office in Ludwigsburg of the Investigation for Administrations of the Land Judicial © Central Office Ludwigsburg Crimes, Nazi

69 Education Civic for Centre © Regional 1959 STUDENT EXHIBITION “UNPUNISHED NAZI JUDICIARY”

In 1959, the operations of the judiciary during the Nazi period were subject to public criticism for the first time. Berlin members of the Socialist German Student Association (SDS) around Reinhard Strecker organised a touring exhibition of nine German cities. The exhibition venues were usually restaurants and student halls of residence. Using the most basic means, such as photocopies and hand-written posters, the students documented countless crimes by the Nazi judiciary. Radio feature 27 November 1959: Karlsruhe students open the exhibition “Unpunished Nazi Judiciary” by Michael Reissenberger for SWR 2, 27 November 2014

Reinhard Strecker (on the right), one of the organisers of the touring exhibition “Unpunished Nazi Judiciary”, takes a principle witness in the Eichmann trial on a guided tour of the exhibition in Munich in 1961 ©IMAGO/ZUMA/KEYSTONE

70 The exhibition initially aroused widespread indignation in the Federal Republic, was considered to have been controlled by the GDR, and led to a rift between the Social Democratic Party of Germany (SPD) and its student organisation SDS. However, the exhibition also attracted great attention abroad and in 1960 was displayed in the British Parliament. One result was that in 1961, the German Judiciary Act was amen- ded and jurists with a Nazi past were given the opportunity to apply to take retirement. However, this offer was taken up by only 149 out of approximately 15,000 judges and public prosecutors at the time.

A death sentence issued by the People’s Court on 8 September 1943. Similar copies of documents were presented in the exhibition.

Exhibition poster “Unpunished Nazi Judiciary”

71 1961 EICHMANN TRIAL

The Eichmann Trial, which was held in Jerusalem in 1961, attracted world-wide attention. Adolf Eichmann was a former SS Obersturmbannführer and as such was responsible for the expulsion, deportation and thus murder of European Jews. After going underground in Buenos Aires for years, he was abducted and taken to Israel by Mossad, the Israeli Excerpts from the presentation by Gabriel Bach at the Second secret service, and put on trial there. Rosenburg Symposium in Nuremberg on 5 February 2013 Not least, this trial changed the image of Nazi perpetrators. Initially, after 1945, the SS and the Gestapo had been iden- tified as the main groups of perpetrators who had been involved in the extermination of the Jews, emphasising the image of the lower-class criminal murderer and thug. The Eichmann trial gave rise to the image of the “perpetrator behind his desk” from the bourgeois elite. Now the Holocaust appeared to be an industrialised mass extermination process (“death factories”) in which the individual disappears in the faceless apparatus of the extermination machine. Only in the 1990s did research on the perpetrators detach itself from these images, once again placing the focus more strongly on perpetrators’ individual actions and motivations.

Adolf Eichmann is sentenced to death by hanging, 15 December 1961 ©picture alliance / dpa / alliance ©picture

72 1963-1965 AUSCHWITZ TRIAL IN FRANKFURT AM MAIN

Starting in 1963, 22 former SS men from Auschwitz concen- tration camp were put on trial in Frankfurt. There had been considerable resistance to the trial from within the judiciary. It was only through the untiring commitment of the Hessian Public Prosecutor General Fritz Bauer that the proceedings took place.

The trial lasted 20 months; more than 200 Auschwitz survi- vors were heard as witnesses. The proceedings, which attracted

great media interest in Germany and abroad, showed the pub- © www.auschwitz-prozess-frankfurt.de lic the whole inconceivable dimensions of the mass murders Fritz Bauer was responsible for bringing about the Auschwitz trial and made a key contribution committed in Auschwitz for the first time. to the capture of Adolf Eichmann.

The trial had a broad influence on the social image of the typical Nazi criminal. Most of those who bore the main responsibility for the organised mass murders came from the middle class, and were doctors, businessmen, craftsmen or bank managers. The lack of sympathy and remorse shown by the suspects on trial shocked many observers.

These trials resulted in six defendants being sentenced to life Adolf Eichmann is sentenced to death by hanging, 15 December 1961 imprisonment for murder. Ten defendants were sentenced to between three and fourteen years’ imprisonment. Three defendants were acquitted. The court held that a sentence could only be passed if it could be demonstrated that each perpetrator had been specifically involved in committing a murder; thus, in the subsequent period there were only a few proceedings against people who had borne responsibility in the concentration camps.

It was not until 2011 that the legal view taken by Fritz Bauer prevailed in the proceedings against former concentration camp guard John Demjanjuk. Anyone who kept the murder machinery going through his activity in an extermination camp was an accessory to murder. This change of legal view led to new trials against former SS men, such as Oskar Gröning in Lüneburg in 2015 and Reinhold Hanning in Detmold in 2016.

73 Auschwitzprozess Mai 1964 = Auschwitz Trial, May 1964 Skizze Erich Dittmann = Sketch by Erich Dittmann Blick von der Pressetribüne FFM = View from the

Sketch of the courtroom in Haus Gallus by press gallery in Frankfurt am Main Erich Dittmann, view from the press gallery

74 75

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