The Law Under the Swastika (28 page)

This basic pattern characterizes Schweling’s account of proceedings against conscientious objectors (Jehovah’s Witnesses) and generals, and the accounts (apparently abridged by Schwinge) of proceedings for spying, committing sabotage, giving aid and comfort to the enemy, and committing economic offenses.

The actual study of field court decisions begins with numerical data without precise reference to the distribution of groups of offenses. This is followed by brief remarks on the punishment of homosexuality and political offenses. These passages contain a host of value judgments that are not verifiable and are always favorable to Wehrmacht justice: Numbers are called “high” or “very low,” death sentences are always “rare,” sentencing is always “mild,” and so on. Problems concerning ratios and the potential manipulation of figures by altering classifications and the number of unreported cases are not addressed. Either the author is unaware of them or he deliberately ignores them because a precise analysis would have weakened the suggestive power he seems to invest in them.

The thrust of the account becomes clearest in the roughly sixty-page chapter on the praxis of sentencing. It opens with the tirelessly repeated statements that tough times require tough measures and that the practice in other countries was equally harsh, if not harsher. At the same time, the author emphasizes that the German praxis during the war was not really harsh; rather, it was in keeping with the principles of the
Rechtsstaat
, and it became increasingly lenient. Trends toward harsher sentencing are strenuously denied; where this is not possible because of the numerical data (for example, a rise in prison sentences and the approximately 10,000 death sentences that were handed down), the causes are shifted away from the court to outside “circumstances.” While highlighting anything that points to mild sentencing, Schweling quickly skips over sentences he himself describes as “excessive.” The category that he creates based on his subjective feeling and uses most frequently to describe sentences is “harsh but still justifiable.”
¹⁶
Only 6 of 1,636 sentences struck him as “excessively harsh,” whereas he rates 200 as “unusually mild.” There would be something pitifully naive about this blind faith in numbers were the subject matter not so horrible and the constant self-righteous
comparison with other countries—which is truly unjustified—so revolting.

Given what we have seen so far, it comes as no surprise that the examined files proved to be “generally in order” with respect to procedural law. The independence of the administration of justice was “hardly ever encroached upon,”
¹⁷
National Socialists were not favored, and there were, in the author’s opinion, no indications that the judiciary was submissive toward military or professional superiors. Only the appointment of defense attorneys was not always “the way one would have hoped.”
¹⁸
During review proceedings the files were “conscientiously examined, and each case was appreciated not only in legal but also in human terms.” As for pretrial detention, “apprehension and arrest . . . were not infrequent, but they always met the legal requirements.”
¹⁹

III.
The book is written from the perspective of someone who was there and thinks this gives him an advantage in speaking about the events. In reality, a participant is thoroughly unsuited for the role of detached observer. It is unavoidable that personal recollections, pride, anger, shame, and a desire to justify the events to oneself and posterity merge with the findings from a renewed examination of the files. At the same time, the book is written from the perspective of a soldier (whose political views are probably German National). This perspective has shaped the value judgments about military necessities in a dictatorship at war. On this point the book is presumably representative of a large segment of veterans, and the findings, if presented in an abbreviated popular form at veterans’ meetings, would presumably receive enthusiastic approval.

Finally, the book was written by a jurist who worked within the judicial system of the Federal Republic. Pension law, restitution law, and penal law have a peculiar way of dividing people into those who are “compromised by National Socialism” and those who are “not compromised.” The significance of this for the book is that Schweling takes this division and turns it into a historical yardstick. However, ever since the ill-fated “de-Nazification” by the Allies, we have known that such a division is neither very practical nor informative, given the innumerable gradations, mixtures, and transformations that people underwent, and given the facelessness of what is to be called “National Socialist.” This division is not sustainable as a historical and heuristic principle.

The author’s (and editor’s) threefold bias as participant, soldier, and
jurist imparted to the well-intentioned work the distorted structure and disastrous statements that make it unusable as a scholarly study. (Of course, it is a good example of a fairly typical way of coming to terms with the past.) The history of German military justice under National Socialism must therefore be taken up anew. Schweling’s book can be no more than a point of departure that has to be abandoned.

No sooner had the book been published than it received high praise from Friedrich Karl Fromme in a review in the
Frankfurter Allgemeine Zeitung
entitled “Wie Militärgerichtsbarkeit wirklich war” (What military justice was really like). My own letter to the editor, which opposed Fromme’s verdict, triggered a broad public debate during the second half of 1978. Former military judges, in particular, joined the debate on Schweling’s side. This was the time of the Filbinger affair.
²⁰
A second edition of the book appeared in 1978.

A decade later, the military historian Manfred Messerschmidt and the layman Fritz Wüllner published their response to Schweling’s study.
²¹
Its goal was the “destruction of a legend,” which had read as follows in the version of Schweling and Schwinge: Military justice was not Nazi justice; its judgments were “harsh but just”—appropriate, in any case, to the pressure it was under. Finally, what it did was no different from what the military justice of other countries also did. This was and is the view of former military judges. It is “normal” in the sense that participants in historical events create a picture they can live with, one in which they are cast in as favorable a light as possible—as they wish to be seen by posterity. A part of this is the attempt to lend authenticity to the picture by invoking their own experiences and by dismissing critical objections with the comment that the critics “weren’t there.”

It is equally normal, of course, that the perspective of participants is too narrow and cannot be generalized, that participants can offer little more than subjective impressions, and that a particular individual’s innocence makes it impossible to see how his own group, beyond the individual level, was involved with the regime. All this is readily apparent in the account of military justice by Schweling and Schwinge. The book by Messerschmidt and Wüllner, for its part, is not the hoped-for objective, comprehensive study of the topic. Instead, driven by a barely concealed outrage, it is a reckoning with Schweling and Schwinge, with the overall apologetic tendency of their work (of which there can be no doubt), and with many details that have proven to be wrong upon closer examination. The number of death sentences imposed by the more than 3,000 military judges was not from 10,000 to
12,000, but about 50,000—that is, more than were imposed by all special courts and the People’s Court combined. The number of cases brought was not 70,000, but about 3 million.

But the point here is not to correct the figures, no matter how important this is for an objective historical picture where we already have to expect hecatombs of innocent victims. The essence of the matter is rather to thwart the attempt by a specific, self-contained group of judges to obfuscate their own history with the help of simple arithmetic tricks and arbitrary value judgments (“harsh but just” and “on the whole mild”), using an aura of scholarship and the protection of good political connections to do so. The thinking in the circle of former military judges must have gone something like this: Once someone from “their own ranks” has been put in a position where he can write an official study, and once the basic outline has been drawn and he has been supplied with selected material, it is only the details that need retouching. Inconvenient elements are defined away from the outset (the SS, courts-martial), and the rest is declared “normal,” especially in comparison with other countries; obvious crimes become “isolated cases”; contacts with the resistance are gloriously highlighted. In fact, the entire book—in a move of consummate bad taste—was dedicated to the memory of the honorable Nazi victims Dr. Karl Sack and Dr. Rüdiger Schleicher.

To this extent the book by Messerschmidt and Wüllner is indispensable as a counterargument. Its contention is as follows: Military justice was part of the Nazi system; it supported that system right up to the last days of its downfall; its punishment was barbarically harsh, especially in comparison to that in other countries; and it has a still undetermined but very high number of innocent victims on its conscience.

Starting from this basis, which cannot be seriously challenged, given the available material, the subtleties should now be worked out: cases of leniency, which were perhaps not rare; long prison terms to avoid the death penalty; clever delays of proceedings in view of the imminent end of the war; cases of open mutiny and resistance. All these things existed, but Messerschmidt and Wüllner either do not mention them or only hint at them, precisely because Schweling and Schwinge had already used them so blatantly. However, this does not mean that the truth must lie somewhere in between: One must beware of this kind of reconciliation of opposing views. For even though all indications are that Messerschmidt and Wüllner’s views are closer to the truth, it is at least conceivable that these authors, too, have underestimated the actual extent of the entire complex of military justice. This uncertainty
will remain unless and until the files in the archives are inventoried with a sound and verifiable statistical method and are evaluated with an openly declared catalog of criteria. It is more than doubtful that this will ever happen. The energy it takes to review tens of thousands of files will probably be invested only if there is strong external motivation that will make the necessary research resources available. Once those who were directly involved are no longer alive and no longer provoke political interest in the subject matter (as Hans Filbinger did, for instance), National Socialist military justice and the records it left behind will also gradually be covered by the dust of history. The voices that are still audible today will become only a faint murmuring: As Theodor Adorno said in 1944, “The expression of history in things is nothing other than that of past suffering.”

IV.
The story continues, however. After the first book (by Schweling and Schwinge), the counter article,
²²
and the counter book by Messerschmidt and Wüllner, as well as the response by Schwinge, Fritz Wüllner published another study in 1991,
Die NS-Militärjustiz und das Elend der Geschichtsschreibung. Ein grundlegender Forschungsbericht
(National Socialist military justice and the poverty of historiography: A basic research report). As Hans Wrobel said, this book is an “anti-Schwinge” written “cum ira et studio.”
²³
And Wrobel gave all the reasons why it is excusable that this book does not live up to the ideals of scholarly detachment and coolness, and that it has clear shortcomings in its presentation. The facts that Wüllner has compiled and has for the most part backed up with documentation are not wrong because the author presents them with moral outrage and has a purpose: namely, to prove that the account of Schweling and Schwinge is wrong. Future research is not finished, but it now has much more material to work with than it had a decade ago. Scholars will reexamine most of the questions, they will look at the 11,000 files in the Archiv Kornelimünster near Aachen, and most of all, they will have to attempt a “verdict in the historical context.”

In the meantime the judicial system has been active. The Federal Social Court changed its previous decisions. In the wake of a resolution of the Bundestag on January 25, 1985, it recognized compensation for victims of National Socialist military justice,
²⁴
on the grounds that the verdicts of the nonindependent military courts in a “war that violated international law” constituted “obvious injustice.” In rendering its decision, the court drew explicitly on the work of Messerschmidt and Wüllner. It was severely attacked but also emphatically defended for doing so.
²⁵
Though this does not settle any question of legal history,
it appears that a change of generations and outlook has taken place in the judiciary, as well. Here, too, the pressures for conformity and collegial solicitude are lessening. Here, too, the view that has long appeared most persuasive to less biased historical observers seems to be gaining ground.

TEN
The White Rose and Its Judges

I.
The White Rose
,
¹
a film by Michael Verhoeven and Mario Krebs, came to German theaters in the fall of 1982. Its closing statement led to an outcry in the media: “It is the opinion of the Federal Court that the sentences against the White Rose are legal. They are still in force.”
²
Commentators called it “false,”
³
“objectively wrong” and “infamous,”
⁴
“doubly wrong,”
⁵
“shocking and wrong,”
⁶
“aggressive and wrong,”
⁷
“false and outrageous,”
⁸
“clearly false and polemical.”
⁹
The President of the Federal Court declared that his court had never reviewed the sentences against members of the White Rose. He carefully indicated that he was distancing himself from the so-called Rehse decision,
¹⁰
and raised the question whether the Bundestag might not consider nullifying all sentences handed down by the People’s Court.
¹¹