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This chapter argues that that Nazi trials in eastern Germany helped legitimate the emerging Stalinist dictatorship while remaining reasonably fair down until 1950. In forging their new dictatorship, the Socialist Unity Party (SED) relied on a nominal alliance with bourgeois and Social Democratic politicians. This alliance was based in part on a shared interest in punishing Nazi crimnals. Nazi trials in the East helped the SED identify and eliminate unreliable personnel among prosecutors and judges. More importantly, it helped craft and cement the justification for the new police state, by rationalizing denunciations to the new secret police (the Stasi) while criminalizing denunciations to the former secret police (the Gestapo). At the same time, these trials retained important due process protections for defendants. And, if Soviet complaints are to be believed, there were far more acquittals and modest punishments than the communists wanted. After the founding of the German Democratic Republic in 1949, though, this changed. In the so-called Waldheim trials of 1950, the prosecution of Nazi criminals became a classic example of authoritarian justice, with pre-determined outcomes and no due process. But this was a result of the new dictatorship, not its cause.
Not every investigation into Nazi criminality resulted in a prosecution, much less a conviction. This chapter tells the story of one case that failed to make it to trial. Taking a micro-history approach, the chapter examines the murder of an individual Jew, Dr. Hans Hannemann, in Berlin in the closing days of World War II. Hannemann was killed after being turned over to the SS by a group of local civilians, who appear to have been motivated by anti-Semitic beliefs and the fear that he could be a Russian spy. After the war, local authorities launched an investigation into his death. Despite compiling considerable evidence that various local individuals were implicated in Hannemann’s murder, the prosecutor in the case, Wilhelm Kühnast, dropped the charges on the grounds that “so much time had passed” since the killing. This resulted in a modest political scandal, and Kühnast was arrested by the Soviets, under pressure from East German communists. He subsequently escaped to West Berlin and resumed his life. The Kühnast scandal shows how East German communists used Nazi trials as a litmus test for political reliability and also how the Cold War poisoned the prospects for justice in many Nazi cases.
In western Germany, a major controversy developed over the British and French policy of requiring German courts to prosecute Nazi crimes against humanity. German critics argued that this violated the violation on ex post facto law making. This, they said, made such trials unjust and similar to the courts of the Third Reich, which had also used ex post facto laws. The British and their German supporters argued that Nazi crimes could only adequately be punished as crimes against humanity, since many Nazi misdeeds had not been criminal under the laws of the Third Reich (e.g. the denunciation of individuals to the Gestapo). The American decision not to grant German courts jurisdiction over crimes against humanity came in large part out of a desire to avoid a similar controversy in their own occupation zone. Many of those critical of prosecuting Nazi atrocities as crimes against humanity wanted to help Nazi criminals and make it harder to prosecute Nazi crimes. Yet, because they made their arguments in the language of liberal legalism and the principles of legality, these critics helped to deradicalize the German legal profession, which had previously been deeply anti-liberal and anti-democratic.
This chapter examines the development of Allied policy toward German courts in all four occupation zones. The chapter begins by analyzing the limitations in the denazification of the German legal profession. It then turns to the policies adopted by the four occupying powers toward granting German courts jurisdiction over Nazi crimes. Allied Control Council Law No. 10 of December 1945 allowed the occupation authorities to grant German courts jurisdiction over Nazi crimes against humanity, which included crimes against German citizens. In the British and French Zones, German courts were granted general jurisdiction over Nazi crimes against humanity. In the American zone, fears of German pushback led the Americans to authorize the Germans to prosecute Nazi crimes only under domestic law, not as crimes against humanity. In the Soviet Occupation Zone, a complex process of politicization took place. At first the Soviets allowed Germans to proseucte Nazi crimes against humanity in criminal courts. They the folded crimes against humanity prosecutions into the broader program of denazification. This led to an increased politicization of these trials, though they did not become complete sham trials until the so-called Waldheim Trials of 1950.
With the founding of the two German states in 1949, the period of political transition in postwar Germany came to an end. Nazi trials, however, continued in both West and East Germany. The Epilogue examines how policy toward Nazi prosecutions changed with independence in both the Federal Republic and German Democratic Republic. West Germany pursued a policy of rehabilitation for most former Nazis, coupled with the further prosecution of small numbers of ‘intolerable” Nazi atrocities. This was part of a strategy of “democratization via integration.” Meanwhile, East German continued a more robust prosecution program, even if the number of trials was still substantially smaller than during the occupation period. The epilogue also recapitulates the argument of the book. Worse trials in the West helped inadvertently to democratize the emerging Federal Republic of Germany, while better trials in the East contributed to the consolidation of a new, Stalinist dictatorship. Transitional justice in Germany thus produced counter-intuitive results at odds with the prevailing wisdom among scholars and activists.
The introduction discusses the development and substance of transitional justice theory. It shows the main assumptions embedded in this theory, which posits a direct and necessary link between criminal trials for past atrocities and post-authoritarian transitions to democracy. In a nutshell, the theory assumes that better trials lead to better democracy. Transitional justice theory has three main presuppositions. First, the theory assumes that criminal trials have a deterrent effect that prevents new authoritarian atrocities. Second, it asserts that trials offer democratizing lessons in history. Finally, it assumes that trials for past atrocities are necessarily and inherently democratizing because they promote liberal due process rights. The German case calls into question all three of these assumptions. In western Germany, liberalization occurred, but mainly as a way to avoid justice for Nazi crimes. And in the east, fair trials led not to democracy, but to a new authoritarianism.
This chapter outlines Allied efforts at justice for Nazi crimes. It describes how the International Military Tribunal at Nuremberg prioritized the prosecution of aggressive war and rendered Nazi atrocities secondary. The chapter then analyzes how subsequent American trials at Nuremberg did focus on Nazi atrocities, but how the defense attorneys successfully shaped the German public perception of the trials, so that they largely failed in their liberalizing pedagogy. The chapter also evaluates the national trial programs conducted by the Americans, British, French, and Soviets for “ordinary” German war crimes. It argues that these trials received only modest public attention, in comparison to the Nuremberg trials, and that, because these trials were focused overwhelmingly on crimes against Allied nationals, they had very limited impact on German political culture. Overall, the chapter concludes that the Allied trials did not have the kind of democratizing impact suggested by transitional justice theory.
Post-war Germany has been seen as a model of 'transitional justice' in action, where the prosecution of Nazis, most prominently in the Nuremberg Trials, helped promote a transition to democracy. However, this view forgets that Nazis were also prosecuted in what became East Germany, and the story in West Germany is more complicated than has been assumed. Revising received understanding of how transitional justice works, Devin O. Pendas examines Nazi trials between 1945 and 1950 to challenge assumptions about the political outcomes of prosecuting mass atrocities. In East Germany, where there were more trials and stricter sentences, and where they grasped a broad German complicity in Nazi crimes, the trials also helped to consolidate the emerging Stalinist dictatorship by legitimating a new police state. Meanwhile, opponents of Nazi prosecutions in West Germany embraced the language of fairness and due process, which helped de-radicalise the West German judiciary and promote democracy.