LAW, JUSTICE, AND THE HOLOCAUST 1 2 LAW, JUSTICE, AND THE HOLOCAUST 1 ACKNOWLEDGMENTS Authors William F. Meinecke, Jr., Historian Alexandra Zapruder, Consultant This volume was originally created as a complement to the presentation“How the Courts Failed Germany,” delivered by the United States Holocaust Memorial Museum at the 2009 annual Conference of Chief Justices and State Court Administrators. The Museum wishes to thank the following individuals for their advice and support: Advisory Committee Hon. Rebecca White Berch, Chief Justice, Arizona Supreme Court David Byers, Director, Administrative Office of the Courts, Arizona Supreme Court Jerry Landau, Director of Government Affairs, Arizona Supreme Court John Meeks, Vice President, Institute for Court Management, National Center for State Courts Denise M. Neary, Senior Judicial Education Attorney, Federal Judicial Center Sheila Polk, Yavapai County Attorney, Arizona Distinguished Panelists Hon. Jonathan Lippman, Chief Judge, New York State Court of Appeals Hon. Ruth V. McGregor, Chief Justice (Ret.), Arizona Supreme Court Hon. Jean Hoefer Toal, Chief Justice, South Carolina Supreme Court Hon. Eric T. Washington, Chief Judge, District of Columbia Court of Appeals This publication was made possible through the generous support of Dr. Donald and Sue Hecht. July 2014 Cover Photo: Criminal court judges display their loyalty to the Nazi state. Berlin, Germany, October 1936. Ullstein bild/The Granger Collection, NY 2 CONTENTS ABOUT THE MUSEUM .....................................................................................5 INTRODUCTION ..........................................................................................7 PART I: DOCUMENTS RELATING TO THE TRANSITION FROM DEMOCRACY TO DICTATORSHIP ........................................................................... 9 I. Decree of the Reich President for the Protection of the People and the State (Reichstag Fire Decree): February 28, 1933 . .10 II. Arrests without Warrant or Judicial Review: Preventive Police Action in Nazi Germany as of February 28, 1933 ..............................................................................13 III. Law to Remedy the Distress of the People and the Reich (The Enabling Act): March 24, 1933....................17 . IV Law for the Imposition and Implementation of the Death Penalty (Lex van der Lubbe): March 29, 1933 .....................................................................................19 V. Law against the Founding of New Parties: July 14, 1933....................................................21 VI. Oaths of Loyalty for All State Officials: August 20, 1934................................................... 23 PART II: SELECTED DOCUMENTS SHOWING KEY LEGAL MECHANISMS USED TO IMPLEMENT THE NAZI AGENDA ................................................................... 25 I. Antisemitic Legislation: 1933–39 . 26 II. Nuremberg Race Laws (Reich Citizenship Law and Law for the Protection of German Blood and German Honor): September 15, 1935 ...............................................................30 III. Supreme Court Decision on the Nuremberg Race Laws: December 9, 1936 .................................. 34 . IV Decree against Public Enemies (Folk Pest Law): September 5, 1939 ........................................ 38 . V Katzenberger Case: March 13, 1942.................................................................... 40 VI. First Letter to All Judges (Guidelines for Sentencing): October 1, 1942 .......................................51 VII. Jurists’ Trial Verdict (US v. Josef Alstötter, et al.): December 4, 1947 . 56 PROGRAM RESOURCES.................................................................................. 63 Contract Law Case ................................................................................. 64 Family Law Case ...................................................................................66 GLOSSARY.............................................................................................69 FURTHER READING ..................................................................................... 73 German Justice System Quotations: 1933–45............................................................74 Suggestions for Further Reading...................................................................... 76 TIMELINE OF NAZI GERMANY ............................................................................. 78 3 The United States Holocaust Memorial Museum, located in Washington, DC, sponsors onsite and traveling exhibitions, educational outreach, Holocaust commemorations, and new scholarly research. It also strives to make genocide prevention a national and international priority. Timothy Hursley 4 ABOUT THE MUSEUM The United States Holocaust Memorial Museum is America’s national institution for the documentation, study, and interpretation of Holocaust history, and serves as its memorial to the millions of people killed during the Holocaust. The Holocaust was the state-sponsored, systematic persecution and annihilation of European Jewry by Nazi Germany and its collaborators between 1933 and 1945. Jews were the primary victims—six million were murdered; Roma and Sinti (Gypsies), people with mental and physical disabilities, and Poles were also targeted for destruction or decimation for racial, ethnic, or national reasons. Millions more, including homosexuals, Jehovah’s Witnesses, Soviet prisoners of war, and political dissidents, also suffered grievous oppression and death under Nazi Germany. A living memorial to the Holocaust, the Museum strives to inspire leaders and citizens to confront hatred, prevent genocide, and promote human dignity. Its primary mission is to advance and disseminate knowledge about this unprecedented tragedy, to preserve the memory of those who suffered, and to encourage all people to reflect upon the moral and spiritual questions raised by the events of the Holocaust as well as their own responsibilities as citizens of a democracy. For more information, visit ushmm.org. 5 German police officers stand with a young couple accused of race defilement. The Jewish man wears a sign that reads: “I am a defiler of the race.” Norden, Germany, July 1935. Staatsarchiv Aurich 6 INTRODUCTION Between 1933 and 1945, Germany’s government, government authority, ensuring public respect led by Adolf Hitler and the National Socialist for the law, and guaranteeing that state actions (Nazi) Party, carried out a deliberate, calculated had a legal basis (Rechtsstaat2). At the same time, attack on European Jewry. Basing their actions they valued judicial independence in the form on racist beliefs that Germans were a superior of protection from arbitrary or punitive removal people and on an antisemitic ideology, and using from the bench and freedom from dictates World War II as a primary means to achieve their regarding decision making. Above all, they goals, the Nazis targeted Jews as the main enemy, rendered judgment based on such fundamental killing six million Jewish men, women, and Western legal principles as the equality of all children by the time the war ended in 1945. This citizens, the right of an accused person to a fair act of genocide is now known as the Holocaust. trial, and the concept that there could be no As part of their wide-reaching efforts to remove crime or penalty without prior law. from German territory all those whom they considered racially, biologically, or socially unfit, In spite of these values, political democracy the Nazis targeted many other groups as well, presented serious challenges to the judiciary. including Germans with mental and physical Many judges rejected the legitimacy of the disabilities, Roma (also known as Gypsies), democratic Weimar Republic, since it had Soviet prisoners of war, Poles, homosexuals, and come about through revolution, which they Jehovah’s Witnesses. In the course of this state- considered, by definition, a violation of the sponsored tyranny, the Nazis left countless lives law. This attitude had long-term consequences shattered and millions dead. for the republic. Judges routinely imposed harsh verdicts on left-wing defendants, whom The most significant perpetrators of these crimes they regarded with suspicion as revolutionary are well known: Hitler, Adolf Eichmann, Heinrich agents of various foreign powers, while acting Himmler, and Reinhard Heydrich, as well as leniently toward right-wing defendants, whose the SS,1 among others. But less known are the nationalist sentiments typically echoed their contributions of “ordinary” people—doctors, own. As a result, in the mid-1920s, supporters lawyers, teachers, civil servants, officers, and other of the republic proclaimed a “crisis of trust,” professionals throughout German society—whose demanding the temporary suspension of judicial individual actions, when taken together, resulted independence and the removal of reactionary in dire consequences. Put simply, the Holocaust and antidemocratic judges from the bench. could not have happened without them. Judges regarded these developments with alarm, rejecting proposals for reform as a perversion of The role of those in the legal profession in general justice. Many were convinced that the criticism and the actions of judges in particular were leveled upon them, which had come from the critical. Many senior jurists in Nazi Germany had political left and from parliament, undermined been on the bench throughout the years of the the authority of the state. Weimar Republic (1918−1933)