No one contends, of course, that German judges and prosecutors destroyed as many lives as did the SS, Gestapo, or other agencies of the Nazi machine. Their victims number in the thousands, not the millions. A judge who knowingly sentenced even one innocent Jew or Pole to death was, however, guilty in the eyes of the prosecutors and judges at the Justice Trial in Nuremberg. There would be no "only a couple of atrocities" defense.
Ingo Muller, in Hitler's Justice: The Courts of the Third Reich, provides a penetrating picture of the workings of the criminal justice system in Nazi Germany. Muller's analysis of the evidence suggests that most German judges--contrary to common opinion--were ultraconservative nationalists who were largely sympathetic to Nazi goals. The "Nazification" of German law occurred with the willing and enthusiatic help of judges, rather than over their principled objections.
Many judges appointed before the Nazi rise to power--because of the economic and social circles that judges were drawn from--had views that were quite compatible with the Nazi party. A few Jewish judges sat on the bench when the Nazis assumed power--but only a very few. A 1933 law removed those few Jewish judges from officee.
Only a handful of the non-Jewish judges demonstrated real courage in the face of Nazi persecution and violations of civil liberties. One who did was Lothar Kressig, a county court judge who issued injunctions against sending hospital patients to extermination camps. When ordered to withdraw his injunctions, Kreyssig refused. He also attempted to initiate a prosecution of Nazis for their role in the program. Kreyssig, under pressure, eventually resigned.
In the Justice trial, American prosecutors sought to demonstrate a pattern of judicial and prosecutorial support for Nazi programs of persecution, sterilization, extermination, and other gross violations of human rights. In order to prove an individual defendant guilty, prosecutors had to show that the defendant consciously furthered these human rights abuses.
The violations of human rights progressively worsened as the Nazis solidified power and began their wars of aggression. In 1938, laws were adopted that imposed different levels of punishment for the same crime--a tougher punishment for Jews, a lighter one for other Germans. By 1940, sterilization programs were underway. By 1942, the "Final Solution," the wholesale extermination of Jews and other persons deemed undesirable, was in full swing.
Two features of German law combined to facilitate the Nazi's evil schemes. The first was that German law, unlike the law of the United States and many other nations, lacked "higher law" (constitutional or ethical standards) that might be resorted to by judges to avoid the harsh effects of discriminatory laws adopted by the Nazi regime. The second difficulty was that there was no separation of powers between the executive and judicial branches of government. Hitler declared, and the Reichstag agreed, had the power "to intervene in any case." This was done, legally, through what was called "an extraordinary appeal for nullification of sentence." The nullification invariably resulted in a sentence the Nazis thought was too light being replaced by a more severe sentence, often death. If these features of German law weren't enough, the Nazis also assigned a member of the Security Service to each judge to funnel secret information about the judges back to Hitler and his henchmen.
The excerpt from the decision of the tribunal (printed on this page) includes the judgments for two of the Justice trial defendants, Franz Schlegelberger and Oswald Rothaug. In the movie Judgment at Nuremberg, Burt Lancaster played the role of a German judge (Ernst Janning) that was based loosely on the prosecution of Schlegelberger.
Schlegelberger is the more sympathetic of the two defendants. He served in the Ministry of Justice from 1931-1942. For the last seventeen months of his service, Schlegelberger was Director of the Ministry of Justice. He wrote several books on the law and was called at the time of his retirement, "the last of the German jurists." Schlegelberger argued in his defense that he was bound to follow the orders of Hitler, the "Supreme Judge" of Germany, but that he did so only reluctantly. Schlegelberger pointed out that he did not join the Nazis until 1938, and then only because he was ordered to do so by Hitler. Schlegelberger claimed to have harbored no ill-will toward the Jews. His personal physician, in fact, was Jewish. In his defense, he also stressed that he resisted the proposal that sent "half Jews" to concentration camps. Schlegelberger suggested giving "half Jews" a choice between sterilization and evacuation. He also argued that he continued to serve as long as he did because "if I had resigned, a worse man would have taken by place." Indeed, once Schlegelberger did resign, brutality increased.
In its decision, the Justice trial tribunal considered what it called Schlegelberger's "hesitant injustices." The tribunal concluded that Schlegelberger "loathed the evil that he did" and that his real love was for the "life of the intellect, the work of the scholar." In the end he resigned because "the cruelties of the system were too much for him." Despite its obvious sympathy with Schlegelberger's plight, the tribunal found him guilty. It pointed out that the decision of a man of his stature to remain in office lent credibilty to the Nazi regime. Moreover, Schegelberger signed his name to orders that, in the tribunal's judgment, constituted crimes. One case described in the decision involved the prosecution in 1941 of a Jew (Luftgas) accused of "hoarding eggs." Schlegelberger gave Luftgas a two-and-a-half-year sentence, but then Hitler indicated that he wanted the convicted man executed. Although Schlegelberger may well have protested, he signed his name to the order that led to the execution of Luftgas. Another case cited by the tribunal concerned a remission-of-sentence order signed by Schlegelberger. Scheleberger explained in his decision that the sentence imposed against a police officer who was convicted of beating a Jewish milking hand would have been bad for the morale of officers.
Although Sclegelberger received a life sentence in Nuremberg, he was released from prison in 1951 and received a generous monthly pension until his death.
The tribunal found "no mitigating circumstances" in the case of Oswald Rothaug. In its decision, the tribunal calls Rothaug "a sadistic and evil man." Rothaug, unlike Schlegelberger, had no reservations about enthusiatically supporting the Nazi pattern of human rights abuses. One case used by the tribunal to illustrate Rothaug's guilt involved a sixty-eight-year-old Leo Katzenberger, head of the Nuremberg Jewish community. Katzenberger stood accused of violating Article 2 of the Law for the Protection of German Blood. The law forbid sexual intercourse between Jews and other German nationals. Katzenberger was accused of having sexual intercouse with a nineteen-year-old German photographer, Seillor. Both Katzenberger and Seillor denied the charge. Katzenberger described the relationship between the two of them as "fatherly." The most incriminating evidence the prosecution produced was that Seiler was seen sitting on Katzenberger's lap. That, in Rothaug's view, was enough: "It is sufficinet for me that the swine said that a German girl sat upon his lap!" Rothaug arranged to have Katzenberger's trial transferred to a special court. In the special court, high-ranking Nazi officials--in uniform--took the stand to express their opinions that Katzenberger was guilty. Rothaug's real trick, however, was getting Katzenberger's punishment increased from life in prison (the normal punishment for violations of Article 2) to death. This he did by a creative construction of a law that prescribed death for breaking certain laws "to take advantage of the war effort." Rothaug argued that death was the appropriate punishment for Katzenberger because he exploited the lights-out situation provided by air raid precautions to develop his "romance" with Seiler.
Most German judges over-identified with the Nazi regime. They came to see themselves as fighters on the internal battlefront, with the responsibility to punish "the enemy within."
Richard A. Posner, federal court of appeals judge and one of the most astute observers of the legal scene, noted that it is not only German judges that might over-identify with popular causes. In The New Republic, Posner wrote:
Perhaps in the fullness of time the growing of marijuana plants, the "manipulation" of financial markets, the bribery of foreign government officials, the facilitating of the suicide by the terminally ill, and the violation of arcane regulations governing the financing of political campaigns will come to be no more appropriate objects of criminal punishment than "dishonoring the race." Perhaps not; but [the story of the German judges] can in any event help us to see that judges should not be eager enlisters in popular movements of the day, or allow themselves to become so immersed in a professional culture that they are oblivious to the human consequences of their decisions."