Module L: Changes to the Judicial System under the Nazis and Post-War Trials of Nazi Criminals

Andreas Strippel

Target groups
Correctional facility trainees, legal assistants and junior lawyers as well as employees of educational institutions

Themes and goals
Already before the Nazis seized power, the Nazi party wrote in their party programme that they wanted to reorganise the legal system according to their own ideas. They wanted to replace the existing system with a German common law system, which was not defined in detail, however. They wanted the state to be an expression of an “organic” national community (Volksgemeinschaft) – a vague concept based on equally vague terms like race, loyalty, the ability to defend oneself and labour – a community in which individual rights were extremely limited. The catchphrase “the law is that which serves the people” was the heart of the Nazi understanding of justice.
Because the Nazi state rejected the basic principles of the previous legal doctrine, this meant that the separation of powers, the equality of all people before the law and the prohibition of ex post facto laws were all suspended. The newly appointed special courts – the Volksgerichtshof (People’s Court) and the Reichsverwaltungsgericht (Reich Administrative Court) – may have been pro forma under the control of the Ministry of Justice, but in actuality they were symbols of the political primacy of the Nazi regime over the judiciary. For example, appeals were not allowed in the special courts, and the conduct of the police was also sometimes exempt from legal review.
The fundamental legal principles of the prohibition of retroactive legislation as well as the prohibition of analogy (no punishment without a law) were also suspended, and the Nazi regime created new laws that strengthened its views that were based on the Reichstag Fire Decree (Reichstagsbrandverordnung). Basic rights were limited or suspended, and the race legislation suspended the equality of all people before the law. Finally, certain social groups were criminalised as so-called antisocial elements or professional criminals.
The Nazis also went as far as to change criminal law. The so-called Law of Criminal Intent (Willensstrafrecht), which emphasised the mind-set of the accused, increased the discretionary power of judges when sentencing a penalty. The ability to impose the death penalty was also greatly expanded – from being used for only three offences in 1933 to 46 offences by the end of the Third Reich. Thus, new laws and the Nazi understanding of justice enabled judges to interpret the law in a way that made it possible to impose the death penalty for any offence. Civil courts imposed a total of 16,000 and military tribunals imposed roughly 30,000 death penalties during the Second World War. As to the regulations of SS courts and police courts, these were based on military criminal law. This also applied to those members of the SS who were deployed in concentration camps. Prisoners, on the other hand, were subject to camp regulations that could be arbitrarily tightened by the SS, who themselves could completely ignore these regulations without fear of penalty.
Another aspect we talk about is the legal treatment of the Nazi regime by the Allies. Already in 1943, the Allies agreed that they would punish the crimes committed by the German occupiers in Europe. In the autumn of the same year, the United Nations War Crimes Commission was thus established, laying the groundwork for the Agreement for the Prosecution and Punishment of the Major War Criminals in London. In addition to the trial against the major war criminals, there were also trials within each occupation zone. The legal basis for trials in the British zone was established by the Regulations for the Trial of War Criminals, made by Royal Warrant on 14 June 1945.
This module focuses on three aspects: 1) the reorganisation of the judiciary under the Nazis; 2) the treatment of SAW prisoners (members of the German armed forces discharged for bad conduct) in concentration camps; and 3) the Curiohaus trials in the British occupation zone.
Concerning the first aspect, we look at the fundamental differences between the Nazi judiciary system and the systems based on the rule of law in the Weimar Republic and the Federal Republic of Germany. We focus on how the special courts in the Nazi legal system acted as a link between the “normative” state (Normenstaat) and the “prerogative” state (Maßnahmenstaat), demonstrating how the appearance of an organised legal system was maintained while the judiciary increasingly became nothing more than an instrument for enforcing Nazi ideas of justice. In some areas, we can even determine how core judicial responsibilities were transferred to the executive (especially the police) – for example, the practice of committing so-called antisocial elements and professional criminals to concentration camps.
Concerning the second aspect, we look at how the treatment of SAW prisoners illustrates the conduct of the military tribunal system under the Nazis. SAW prisoners were committed to concentration camps after having been in special units of the army, navy or air force, or they were transferred from Wehrmacht penal facilities – in other words, from Wehrmacht prisons, penal regiments or disciplinary camps (SAW stood for Sonderabteilung Wehrmacht (special unit of the armed forces), Sonderaktion Wehrmacht (special action of the armed forces) or Schutzhaft aus der Wehrmacht (former member of the armed forces in protective custody)). The treatment of this small group of prisoners demonstrates how the penal system of the (military) judiciary became increasingly repressive during the war. Using this example as a starting point, we discuss the judiciary’s practice of using labour as a disciplinary instrument in the concentration camp system.
Concerning the third aspect, we conclude by discussing the legal action taken by British occupation authorities against crimes committed in Neuengamme concentration camp and its satellite camps, exploring the legal framework and practice for this action. We also look at the prosecution of criminals in West Germany, focusing on the legal framework and implementation as well as grounds for judgements. Finally, we discuss the differences between the British trials and those in West Germany.