"Justice and Accountability after the Holocaust"
Wednesday, 9 November 2011
6:30 p.m. – 8:30 p.m.
Remarks by Patricia Heberer
National Socialist authorities prided themselves with the contention that their regime shared a continuity with the recent past in preserving Germany as a Rechtsstaat: as a state based on the rule of law. Much of its earliest propaganda cast the Third Reich as a government committed to law and order. So in fact, the Nazi regime represented a curious juxtaposition: it was a dictatorship which imposed its rule through what appeared to be a formal legal process. For many, it may come as a surprise to learn that the exclusionary practices which marginalized Jews, Roma, the institutionalized disabled, and many other victim groups, and deprived them of their property and civil rights, were constructed from published laws and administrative decrees. The fact that many of the regime’s persecutory measures stemmed from a body of written law required the widespread complicity of jurists and justice officials in the most criminal policies of the regime. During the first six years of the Nazi dictatorship (from 1933-1939), National Socialist authorities introduced over 400 decrees and regulations which restricted Jews in both public and private spheres. Many of these laws were centralized, national legislation issued by the German administration, and these affected all Jews. But state, regional, and municipal officials, often on their own initiative, also introduced exclusionary decrees within Jews’ own home communities. No corner of Germany was left untouched.
In the Hitler regime’s earliest years, Nazi legislation focused upon the elimination of Jews from economic and public spheres. The first major law to curtail the rights of Jewish citizens was the Law for the Restoration of the Professional Civil Service, which in April 1933 excluded Jews and “politically unreliable” civil servants from public service. In the same month, German law imposed a numerus clausus restricting the number of Jewish students in German schools and universities, and curtailed “Jewish activity” in the medical and legal professions. In the following months similar legislation revoked the licenses of Jewish tax consultants, restricted the reimbursement of Jewish physicians from state health insurance funds, terminated Jewish civilian workers from the army, and banned Jewish performers from the German stage and screen. The capstone of this early antisemitic legislation came with promulgation of sweeping new laws in September 1935 at the annual Nazi Party rally at Nuremberg. These infamous “Nuremberg Racial Laws” codified many of the racial beliefs prevalent in Nazi ideology; and historians regard them as a central feature in the acceleration of legislated discriminatory measures in Nazi Germany. The first, the Law for the Protection of German Blood and German Honor imposed bans upon marriage and extramarital relations between German Jews and “Aryans”, thus providing a legal basis for the punishment of miscegenation, while the content of the second law, the Reich Citizenship Law, deprived Jews of their most integral civil rights, imposing a status which suggested they were now “subjects”, not “citizens”. Ancillary ordinances provided the all- important legal definition for “Jewishness” based in confessional, as well as biological, terms.
The Nuremberg Laws of 1935 heralded a new wave of antisemitic legislation which created immediate and concrete segregation. And just as new laws worked to marginalize Jews and to deny them career and employment possibilities, German agencies moved to “Aryanize” Jewish-owned businesses, a process which facilitated the dismissal of Jewish employees and managers and the sale of Jewish-owned enterprises to “Germans”, usually at prices dramatically below market value. By April 1938, two-thirds of Jewish-owned businesses were already in “Aryan” hands.
With the nationwide pogrom known as Kristallnacht, or Night of the Broken Glass, of 9 November 1938, efforts to drive Jewish citizens from German economic and public life came full circle. The violent pogrom claimed the lives of at least 91 Jews, and as the destruction of synagogues, homes, and businesses spread throughout Germany, units of the SS and Gestapo confined nearly 30,000 Jewish males to concentration camps until each prisoner could produce the requisite papers for emigration abroad. Kristallnacht marked an important turning point in Nazi antisemitic policy, for thereafter anti-Jewish measures radicalized dramatically, with an accumulation of power for their organization and implementation increasingly under the extra-legal auspices of the SS. Following Kristallnacht, Nazi authorities accelerated the Aryanization process, to alarming effect, while a flurry of anti-Jewish laws completed the process, begun years before, of eliminating Jews from the various professions. Jewish pupils and students were now banned from all “German” schools and universities and, with their adult co-religionists, were barred from cinemas, theatres, and sporting facilities. With the outbreak of war on 1 September 1939, Jewish citizens were severely limited in their movements, especially in public places. Once rationing began, Jews received reducing ration coupons, so that many families lacked basic essentials, while German authorities confiscated from them all property “essential to the war effort” including cameras, bicycles, radios, electrical appliances, and other valuables. In September 1941, German Jews, like thousands of their co-religionists in other territories occupied by Germany, were compelled by law to wear the Jewish badge, a distinctive mark which made them more vulnerable to official and spontaneous discriminatory actions, and which signalled their impending deportation to the East.
In the end, however, the murder of European Jewry, as with the killing of 250,000 Roma and Sinti, and 200,000 German disabled patients operated outside the framework of existing law. The murder of disabled patients in the so-called “Euthanasia”, or T4 program, Nazi Germany’s first program of mass murder, occurred on German soil in direct violation of the homicide provisions of the German penal code. The genocide of the European Jewry—and the murder of large segments of the European Romani population — took place largely outside German territory proper. The vast concentration camp system worked as an enormous machinery of destruction, and stood under the aegis of Himmler’s SS and police organizations, outside the purview of German justice. Here European Jewry was beyond the reach of the law, although in the case of German Jews, the legislation inherent in the Eleventh Decree to the Reich Citizenship Law plundered deportees of their property as they crossed the German frontier to their deaths.
Yet even in its legal guise, National Socialist anti-Jewish policy had subverted the rule of law, both in the way Nazi courts (and jurists) reinterpreted existing laws to fit within their regime’s racial framework and by adopting anti-Jewish legislation which often contradicted existing law or the Weimar constitution,which was still in place. In doing so, German law became an instrument of injustice. The criminality which arose as a result would create a challenge for postwar justice, as we shall hear from our next speakers.