The Rosenburg Files: The West German Ministry of Justice after 1949 and the Nazi Past

In January 2012 Germany's Federal Ministry of Justice and Consumer Protection set up an Independent Academic Commission for the Critical Study of the National Socialist Past. On November 17, 2014, the German Historical Institute hosted a lecture by the current Minister of Justice, Heiko Maas, and a panel discussion with the commission's two co-chairs, Manfred Görtemaker and Christoph Safferling, as well as Peter Black, senior historian at the United States Holocaust Museum and former chief historian of the Office of Special Investigation of the US Department of Justice.

After words of introduction by GHI Director Hartmut Berghoff, the German Minister of Justice, Heiko Maas, delivered a lecture in which he explained the origins, mission, and purpose of the Independent Academic Commission. If the first transgression of the German justice system consisted in its participation in discrimination, persecution, and Nazi crimes during the Nazi era, he noted, there was also a "second transgression" after 1945, namely, the failure to prosecute those involved in Nazi crimes, especially if they were jurists. The commission created in 2012, he explained, was designed to examine not the Justice Ministry's history during the Nazi era, which is well researched, but how the West German Ministry of Justice (Bundesjustizministerium) created in 1949 dealt with its own National Socialist Past. To this end, the Ministry has made available to the commission all 280 personnel files of officials working at the Ministry of Justice in its early decades. One of the key questions the commission is to investigate is whether there were networks of old Nazis in the Ministry of Justice who systematically prevented the prosecution of Nazi criminals. In conclusion, Minister Maas stressed that the commission's mission was not limited to research, but also included public history, that is, discussing its findings with current legal practitioners and the general public.

Manfred Görtemaker began his presentation by noting that the commission's research has revealed that the proportion of former Nazis among the Justice Ministry's officials after 1949 as well as in West Germany's Supreme Court, the Bundesverfassungsgericht, was even higher than expected, up to 90%. Remarkably, this was the case even though West Germany's first Minister of Justice, Thomas Dehler, had been an anti-Nazi, and the ministry's top civil service official (Staatssekretär), Walter Strauß, came from a Jewish family and lost his parents in the Holocaust. Görtemaker outlined the commission's main research questions, as follows: first, to analyze what role an official's Nazi past played in the Ministry's patterns of hiring and promotion; second, to determine what role the Ministry of Justice played in the early release of Nazi war criminals; third, to find out what role the Ministry played in the slow rehabilitation of Nazi victims; fourth, to investigate how the presence of former Nazis in the Ministry affected its role in the preparation of West German legislation; and finally: why and how did the German justice system function despite all of this?

In his presentation, Christoph Safferling presented three prominent examples of senior officials in the Ministry's division on criminal justice (Abteilung II: Strafrecht und Verfahren) with Nazi pasts. The head of this division, Josef Schafheutle, who was hired by the West German Ministry of Justice in 1954, had worked at the Reich Ministry of Justice until the very end of the Nazi era as a junior official. Although Schafheutle stressed that he had never been a Nazi party member, the commission's research revealed that he had, in fact, applied for Nazi party membership several times, but was rejected because the party considered him to Catholic. Eduard Dreher, who headed the very important "Referat" (desk) dealing with the penal code, had been a prosecutor at the Special Court (Sondergericht) in Innsbruck during the war, where he had, ruthlessly implemented the draconian Nazi Volksschädlingsverordnung, demanding and obtaining death sentences for defendants who had committed minor offenses, such as theft. Although this past prevented him from becoming a federal judge, he was promoted within the ministry. Ernst Kanter, who headed one of two Unterabteilungen of the ministry's criminal justice division, had been the chief military judge in occupied Denmark from 1942 to 1945. When Rudolf Amelunxen, the Social-Democratic Justice Minister of the Land of Nordrhein-Westfalen, explicitly warned Thomas Dehler, the Federal Justice Minister, about Kanter's Nazi past in a letter, Dehler responded that, based on a variety of testimony, he was satisfied that Kanter's behavior under the Nazi regime had in fact been "exemplary." Drawing on this example, Safferling noted the crucial difference between evaluating former Nazi jurists according to objective versus subjective criteria.

Peter Black applauded the Ministry's decision to set up this commission and expressed the conviction that its research would make important contributions to our understanding of the postwar West German justice system and its handling of the Nazi past. The ensuing panel discussion, which was moderated by Hartmut Berghoff, focused on a number of key issues, including the questions: what alternatives to the hiring of former Nazi jurists were available to the postwar Ministry given that the vast majority of German jurists had collaborated with the Nazi regime; to what extent was the hiring of former Nazis by the West German Justice Ministry "functional" in the sense of providing needed expertise and serving an integrating function; to what extent did the Nazi past of ministry officials influence their work, especially in the preparation of new West German legislation.

RFW

For further information, readers may wish to consult the book: Die Rosenburg: Das Bundesministerium der Justiz und die NS-Vergangenheit - eine Bestandsaufnahme, edited by Manfred Görtemaker and Christoph Safferling (Göttingen, 2013)