The Law in the Service of Nazi Murderers

Ferdinand von Schirach, grandson of a Nazi war criminal, has written a novel that debunks the belief that Germany's legal system underwent a true reform after the war, so that it was no longer possible to say, 'I was just following orders.'

Yuval Elbashan
Yuval Elbashan
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Yuval Elbashan
Yuval Elbashan

"Der Fall Collini" ("The Collini Case" ) by Ferdinand von Schirach, English translation by Anthea Bell. Penguin / Michael Joseph, 208 pages, 13 pounds sterling

Nearly 70 years have elapsed since Austrian writer-philosopher Jean Amery declared that "in Auschwitz reality defeated the human spirit," and words fail when they try to describe what happened there. Even words that were once considered to be particularly powerful - like "Holocaust" or "genocide" - have lost their potency over the years through overuse.

Now it is precisely the "small" books, the ones that make no pretense of capturing the hideousness in its entirety, that actually succeed in touching the nameless horror and convey it to the reader. Thus, for example, in "Fatelessness," Imre Kertesz makes hearts tremble with his description of the encounter between the novel's protagonist, who returns from a concentration camp to his city in Hungary, and two people from his past. One of them asks him to forget what has happened: "'Before all else ... you must put the horrors behind you.' Increasingly amazed, I asked 'Why should I?' 'In order,' he replies, 'to be able to live,' at which Uncle Fleishmann nodded and added: 'Live freely.'"

Ferdinand von Schirach's "The Collini Case" is one such modest book. With a relatively small number of words, set forth on a few pages, and in the guise of a legal thriller, the book - first published in 2011 - succeeds in touching the Holocaust six decades after its end. Although this is von Schirach's third book, and he is a writer in every respect, he still defines himself on the cover as an attorney who "commits the sin of writing." The author, born in 1964, is a grandson of Baldur von Schirach, who was both in charge of the Hitler Youth and was the governor of Vienna. He was convicted of war crimes at the Nuremberg trials and sentenced to 20 years in prison.

With a heritage like that you have to write about this topic with a "muffled" pen. Since what we have here is a thriller, I will not reveal the plot. But beyond the suspense, there is German law, and in many senses this book is an indictment of the current legal system. That system was established in Germany after the war, with the intention of correcting the flaws that prevailed during the Third Reich and that allowed it to operate. And as one of the protagonists of the novel says: "That's exactly what I mean, Leinin. It's the Zeitgeist. I believe in the laws and you believe in society. We'll see who turns out to be right in the end."

In his nearly virtuoso writing, von Schirach succeeds in confronting his readers with the fundamental dilemmas in this realm today: dilemmas of law versus justice, and of inequality and bias among the holders-of-power who formulate the laws (to their own benefit, of course ), versus those who were born on the wrong side of the law: the victims or the defendants.

The protagonist of the work before us, Fabrizio Collini, is both a victim and a defendant, but in the middle of the book he manages to attain the stature of a prosecutor. The subjects of his prosecution are the criminals of his country's past and present legal system.

Transformed into beasts

It was not supposed to have been like this, after the war: The Germans should have already learned the risks inherent in being content with the idea that the law can, by itself, take the place of morality and human conscience. After all, under the auspices of Nazi law, people were transformed from entities with names, rights and responsibilities into fodder for industries, beasts of burden for the economy, numbered merchandise and shreds of human beings. The killing machine did not operate outside the law. On the contrary: It was put into effect with the energetic help of the legal system. Right from the start the persecution of the Jews was cloaked in legal garb with the assiduous help of German jurists. They, who were supposed to have been the guardians of justice, abetted the greatest injustice humanity has ever known.

The situation reached the point where some describe the Nazi legal system as constituting one of the three main bases of power that upheld the regime (in addition to the party and the security forces, including the army ). German legal formalism combined with an absence of basic human courage made German jurists Hitler's partners in crime. These legal experts enabled the Nazis to take over Germany more easily. They enabled the rest of the citizenry and the soldiers - those who turned a blind eye, who informed, who looted Jewish property, who collaborated and who carried out orders - to be part of the Nazi killing machine by providing them with "moral" justification for doing such things, in the guise of obeying the law. Blind obedience, "the obedience of corpses," silenced the voice of the jurist's conscience. Put more clearly: The legitimization granted by the legal community enabled the carrying out of the criminal acts, not in hidden concentration camps but in the very heart of civilization, in the city squares. Only in this way was it possible to implement the whole satanic and megalomaniacal plan.

All this was supposed to have brought about a revolution in the thinking of German law after the war. The former failures were supposed to have sharpened values among those working in this realm, to have augmented the social responsibility of jurists as part of their professionalism.

After the war, no legal professional should have been able to hide behind the written letter of the law, behind court orders or the desires of a client who simply dictated to his attorney what to do. After the high price the whole world paid, all legal professionals should have understood that the law is not a "service" but rather a "mission," which entails tremendous social and moral responsibility.

Now von Schirach comes along and presents us with a masterpiece showing that what there was is what there is. He reveals that in 1968 - the fateful year in which the student revolution ignited in Europe, and Germany itself was in a state of emergency, in the midst of a heated public debate concerning the guilt of the Germans (who "were just obeying orders and were themselves tantamount to victims" ) - the decision was made to apply a statute of limitations to cases of murder committed during the period of the Third Reich - crimes that, because of their gravity, had previously been excepted from the regular statue of limitations applicable to other crimes committed during that period.

On October 1, 1968, as the book puts it, "a totally inconspicuous law" was passed, called the Introductory Act to Administrative Offenses. Knowledgeable people understood this was basic law on legislation concerning minor offenses. "Indeed the law seemed so unimportant it wasn't even debated in the Bundestag. None of the parliamentary deputies there realized what it meant. No one saw it was going to change history."

The law was the initiative of Dr. Eduard Dreher, who acquired a bad reputation as the head public prosecutor of Innsbruck during the Nazi period: "For instance, he called for the death sentence to be imposed on a man who had stolen some food. He also wanted it for a woman who had bought a few clothing coupons illegally."

After the war, Dreher was demoted, but very soon after, his career took off again and he was appointed head of the criminal law department at the Justice Ministry. Dreher's law, as explained in the book, was based on the fact that "'in juridical terminology only the top Nazi leaders were murderers,' said the expert witness. 'All others were regarded as accessories to murder'" - as just following orders. None of the "desk murderers," as they were called at the trial of Adolf Eichmann - those who were responsible for sending transports of hundreds of thousands to their death - were considered murderers in eyes of the German law. When this small, unimportant law passed without anyone noticing, they became accessories to manslaughter rather than accomplices to murder.

Thus, at a stroke, their deeds came under the statute of limitations and they moved to the safe haven of the impossibility of indicting them. At that very time, the Berlin prosecutor's office was busy with preparations for a huge trial against the former leaders of the Reich Main Security Office, after sufficient evidence had been gathered to prove that its officials in Poland and the Soviet Union had been responsible for the deaths of millions of Jews, clergy, communists, homosexuals and Gypsies. When Dreher's law was enacted, the prosecutors had to close those cases and fold. "Dreher's law was nothing less than an amnesty," says one of the characters in the novel. "A cold-blooded amnesty for just about everyone."

Since under the basic principle of the rule of law, once a statute of limitations is applied to a given crime, it is never possible to repeal it, the criminals were protected until their dying days. The defense attorney in the novel asks whether Dreher himself was ever convicted of anything. He is told that to this day it is impossible to prove conclusively that Dreher had not simply made a mistake and that he "died highly esteemed in 1996."

The laws and the authorities protected Dreher. Only in January 2012, in the wake of the revelation of the affair in the book - which is fictional, but based on real cases - did the German minister of justice appoint a committee at the ministry to reexamine the Nazi period, the regime's mistakes and why they occurred. Thus, as though no one had learned anything, the German legal system had been providing a cover (vis-a-vis those same criminals and the survivors of those same victims ) for terrible deeds. "The dead don't seek revenge," says Collini, the protagonist of the novel. "It's only the living who want it."

And another character, the daughter of a criminal who was acquitted, asks aloud what is echoing in the mind of every reader in encountering the judicial disgrace: "Am I all those things too?" she asked, her lips were quivering. "You're who you are," she is told.

And again I cannot help recalling Jean Amery's wise words, from the essay "At the Mind's Limits": "We did not become wiser in Auschwitz, if by wisdom one understands positive knowledge of the world. We perceived nothing there that we would not already have been able to perceive on the outside; not a bit of it brought us practical guidance. In the camp too we did not become 'deeper,' if that calamitous depth is a definable intellectual quantity. It goes without saying, I believe, that in Auschwitz we did not become better, more human, more humane, more mature ethically. You do not observe dehumanized man committing his deeds and misdeeds without having all of your notions of inherent human dignity placed in doubt. We emerged from the camp stripped, robbed, emptied out, disoriented - and it was a long time before we were able even to learn the ordinary language of freedom."

Yuval Elbashan, an attorney, is deputy director of Yedid: The Association for Community Empowerment. His most recent novel, "The Masada Case," was published by Yedioth Books.

A latter-day courtroom in Germany. The book in question is an indictment of the current legal system.Credit: Reuters