Dr. jur. Gerd Ferdinand Kirchhoff[1]
From Denazification to Renazification.
Experiences in Postwar Germany
and a Victimological Point of View on Truth and Reconciliation.
Denazification was a program of the Allied Forces in postwar Germany trying to eradicate Nazi ideology in Germany.
Introduction
This presentation will deal with some aspects of the experiences we have in a field, which is called “Transitional Justice”. It first will introduce some concepts, which might be useful in dealing with the field. Experiences gathered in Germany after the 2nd World War. Finally returning to the conceptual level, trying to give some outlook into what we can see from a victimological perspective on the problem.
Countries in Transition
Speaking in contemporary sociological terms, postwar Germany and postwar Yugoslavia can be looked at in a very similar way. Both came from a monolithic ideological and political system, which permeated the whole society. One was Fascism in the special form of Nazi-Ideology, which was transformed into social reality - the other came from a communistic monolithic ideology in the special form developed in Yugoslavia. Both had seen a breakdown of the old power holding system, with this a radical decline of the ideological values connected with the movement of the rulers and both had the task to get transformed into a new, democratic pluralistic system.
There are a lot of countries and societies who are in the transition from a monolithic system, call them dictatorships, to a new society where more democratic pluralistic structures prevail. Similar things had to happen in South Africa, a country that was ruled by a white dictatorial apartheid system. Like many other societies, these societies undergo major fundamental changes (one hopes) and they have not finished this change - they are in a state of transition.
Transitional Justice in Post Modern Societies
In the last Dubrovnik Course May 2002 Kris Vanspauwen, a young criminologist from the Catholic University of Leuven, Belgium, introduced into the field of victimology the concept of “Transitional Justice”[2] Transitional Justice, according to him, is the study of the choices made and the quality of justice rendered when states are replacing authoritarian regimes by democratic state institutions. In almost all these regimes gross mass victimizations by Human Right Violations took place.
I would like to pick up a thread, left for a short while, the thread of the end of modernity and the life in an era of post modernity.
For many sociologists it seems abundantly clear that at least western societies have reached a point of giving up a uniform response to social phenomena. They no longer prescribe binding rules which characterized so much the societies of modernity who followed great projects and who were less comfortable and tolerant with diversity. Diversity in Postmodernity is highly valued since no longer uniformity can be achieved. The old modern ways of ordering the world in a uniformed way have turned out to be a failure, be it the enlightenment approach, be it the nationalistic approach, the fascist approach, the colonialist approach of the superiority of the white race, the capitalistic approach, the communistic approach - all these modern attempts have proven as failures. We are left in Post Modernity with its lack of uniformed responses, with its emphasis on personal freedom (not only as an enjoyable gift but as the only possibility in living in Post Modernity, with it’s own individually formed responses and freedoms). The old systems have proven their breakdowns. This is the diagnosis: most of our traditional approaches no longer serve the needs of contemporary society.
Therefore, in this situation, we need information, which guides the individual decisions which are now necessary - we can no longer hope that someone from above, God or Führer or Tito, will tell us what is right and what is wrong. We have to decide ourselves, not voluntarily but compulsory. Naturally, that has consequences for the justice system. One of them is that there is no longer a uniformed criminal law approach to all the mass victimizations. This is not the place to discuss the problem more theoretically - but we are well aware that there are the most diverse approaches or methods in which systems have responded to mass victimizations in the time of transition.
Range of Responses to Atrocities
Nils Christie, the famous Norwegian criminologist, is still remembered in Belgrade: 30 years ago he introduced the interactional approach to criminology, the labeling approach to this area of the world in the legendary 1973 Belgrade International Congress of the International Society of Criminology chaired by the highly renowned Milutinovic. In 2001 he looks at different ways mankind reacts to atrocities. He considers a range of answers[3]:
· Punishment. We react. We single out culprits and inflict evil consequences for them.
· Silence. We suppress. That is the most common response. Victims have been silenced over the last centuries over and over, and it is a merit of the victimologists to have reclaimed the silenced part for the analyses of society, and brought the victim as a new entity into the analysis.
· Total amnesia. We forget. As human beings we perceive selectively. We remember selectively. We recall selectively. We construct selectively. We construct priorities selectively. If the wounds of the victims are still too fresh a memory then of course forgetting is not very likely.
· Amnesty. We excuse. I do not agree with the observation that this is the place where the State declares that amnesia should take place.
· Restorative measures. We promote healing. We try to make things right. Crime is seen as a violation of people and relations and communities.
· Truth seeking. We listen. We create an arena where people can expose their story. Where information is given about the otherwise contested and silenced facts.
Kris Vanspowen points out that there is no longer a unified response to mass victimizations. He discusses a whole range of answers which will be listed here shortly:
· Domestic criminal trials
· International Criminal Tribunal (The Hague)
· Ad-hoc Commission (e.g. Rwanda)
· Human Rights Court (Strasbourg) or the Home for Human Rights in Bosnia.
· Truth commissions (e.g. South Africa, Guatemala, Haiti)
In this situation, it seems useful to look again at the way the transition in Germany was handled during the second half of the forties’ in Germany. The Allied in this war were determined to eradicate the Nazi- Ideology completely in Germany.
Plans guiding the Allied Forces Occupation Policy
Interpretations of the German deviant development framed the formulation of war goals: The Conference of Casablanca 1943 had two main goals: the unconditioned capitulation of Germany and the eradication and elimination of the NS-Ideology as with all of their actors, representatives and followers as political factors. The document of the Conference in Jalta reinforced the unbendable will to destroy the German National Socialism and militarism and to take care that Germany never again is able to disturb the peace of the world. Consequently Morgentau concentrated his ideas on de-industrializing and re-farming Germany, this Germany did not need schools other than basic schools under strong and tight American supervision[4].
Such a rural state did not need schools – and so schools in the conquered Germany were completely closed, Art.14 of President Truman’s Directive JCS 1067 for the management of the occupied Germany orders a general and undetermined closing of all German schools. Hunger prevailed in Germany from 1945 to 1949. I remember vividly what was on our menu in the family I grew up. I remember the exceptional delights, which were created by the care packages of Christian American denomination, above all the Quakers. These care packages were sent to us by anonymous friendly unknown people on the other side of the ocean. Their content was a highlight in an otherwise bleak and desperate hungry and freezy time.
Denazification Program
The political administration was in the hand of the Control Council. In Directive 24, there were set guidelines and norms for the political cleaning of all offices and positions. Almost a hundred different ranks of National socialists, public servants and the military were established. THE FAMOUS “Act for the Liberation from Nation Socialism and Militarism” [5]established five different categories: Main culprits, major incriminated (activists, militarists and profiteers), less incriminated, followers and cleared (these were exonerated members of the listed groups who could prove that they were not guilty). The whole program was called denazification.
Denazification in Figures
If you take into account that the Americans had the membership lists of the Nazi Party and that there had been about 8.5 million party members, you can imagine the monstrosity of this task.[6].
After the war, Germany was divided in four military government zones, a separate Russian zone east of the river Elbe, and an American, French and the English zone.
In a Questionnaire Action every German who wanted to be considered for the food stamps and for work, had to fill out a six-page questionnaire. According to a short documentation of Chaim Frank 2001, 6,08 million Germans had been categorized, most intense in the American zone, less intense in the French zone. The Americans started the cleaning effort with elan and scrutiny, while the French felt impeded in rigor and thoroughness due to their own Vichy period.[7]
Immediately 120 000 placements in internship camps (usually former concentration camps) were filled with persons of category 2, automatic arrest. After selection of the main culprits, the highest ranks of the nazi hierarchy and war criminals, there remained the middle ranks of the SS and SA, the middle ranks of party officials and functionaries, the apparatchiks, local party leaders and group leaders. They were interned up to three years in these camps. [8]
In the American zone, 13 million questionnaires were collected[9].
After a first screening it was clear
- how the Nazi was to be categorized - follower or offender
- how the reprimand was and how high the punishments
- how much food rations the nazi was allotted
- whether the denazified Nazi was allowed to work and where.
Till spring 1946 the military did the screening. Then the job was handed over to the new German administrations in the states and left for sentencing of German sentencing bodies, special denazification courts (Spruchkammern).
In all three western zones these courts handled 3 660 648 cases. They found 1 667 main culprits, 23 060 major incriminated, 150 425 less incriminated, 1 005 000 followers. Exoneration certificates were received by 1 213 873 persons.
The remaining cases were not opened, dismissed or cleared by amnesties. In the sowjet zone 1948 the denazification was declared finished by the Sowjet Military Administration after having held responsible 520 000Persons. Here is neither the room nor the need to go further into this.
From Denazification to Renazification
The cold war came up and the western allies were less interested in punishing Germans than in cooperating with them. More and more the jurisdiction was given to the Germans themselves. In October 1950, the Federal Parliament created guidelines for the finale of the procedures. New cases were no more opened. Old cases were dismissed. Professional bans for incriminated Nazis and arrests on their properties were lifted. All who were not sentenced in criminal courts were given a general amnesty. Six months later even major incriminated old Nazis were allowed to return into the public service. Within 5 years, the whole effort turned from denazification into renazification, and that had several reasons:
· There was a dire need of specialists in administration and economy - in the US zone alone 300 000 administrators had been fired in beginning of 1946. The “new “ Germany desperately needed the experts from the old regime.
· The population never supported the denazification campaign. The population was busy surviving, fighting frost, and hunger, and was unwilling to face the fact that they had followed the orders of criminal power holders.
· It was felt that the denazification program was not a German thing but an imported foreign device which was not German
· Since only 10% of all who were sent to the special courts were sentenced, 1% to prison terms - that meant that 90% of all before these courts could not feel guilty.
· There was no need to take over responsibilities since they all could more or less resort to orders from above
· The proceedings were slow and ineffective and the sentences irritatingly lenient, which caused angriness
· Many old feuds were settled, denunciation and informing was widespread.
· The old nazis after denazification which had organized themselves in the new political parties openly called for an end of this in political elections
· The praxis of exoneration was the real audacity. NS offenders, major and minor incriminated suspects wrote for each other certificates, the so-called “Persil-Pages”. These certificates were used as affidavits before the sentencing bodies. In Bavaria some 55% of all involved in denazification procedures produced these Persil Certificates before the courts, on the average of ten per person. In Bavaria, 2.5 Million sworn certificates were signed in favor of the “involved” - on the average every second adult signed such a Persil Certificate[10].
· The churches belonged to the sharpest critics of the denazification work since they feared that instead of conservative elements socialistic elements would come into power.
· These white washed former Nazis helped each other to regain their old positions or to have a nice post war career.[11]
All in all, the Denazification has hindered many Germans to recognize that objectively they have been a more or less important part of the machinery of the totalitarian Nazi - regime, without which the The Third Reich never ever could have come up (Kurt Sontheimer).
Denazification through application of criminal sanctions was certainly well meant. Nevertheless, the reeducation of Germans from a criminal totalitarian past to a democratic presence had better tools than applying criminal sanctions. The sheer amount of prosecutions gave rise to all kinds of defense mechanisms in postwar Germany which counteracted the best intentions of the sentencing. Criminal law, that is the result, is not the most suited tool to cope with such enormous catastrophe that the rule of criminals means for a country.