[Holocaust Remembrance Day began at sunset last night and continues through today. Here is a post from the archives.]
When Nazis Were Judges
Judges, even the best of judges, sometimes make the wrong decisions. And then there are courts where the wrong decision is unavoidable because wrong decisions are intentionally woven into the process.
In Law, Justice, and the Holocaust (2009, United States Holocaust Memorial Museum), William F. Meinecke and Alexandra Zapruder explore the role of the German judiciary in supporting and enforcing Nazi policies from 1933 to 1945. From the beginning of the Third Reich right up to its collapse, German courts followed laws passed by the Nazi government that deprived people of basic human rights while furthering the stated aims of Adolf Hitler and his top aides.
The judges who sat in those courtrooms were not hand-picked Nazis just waiting for an opportunity to serve their Fuhrer, though. Almost all of them were hold-overs from the previous regime. Yet when told to take a new oath of office, one which explicitly elevated Hitler as the supreme object of their allegiance over the rule of law, they did so with alacrity.
Nazi leadership quickly passed laws – some signed by Hitler personally – criminalizing free assembly and free speech, as well as providing harsher penalties for what would otherwise be minor crimes. Jews, of course, were not only specified in some of these laws as under particular restrictions, but were also singled out for that harsher punishment.
One of the most insidious laws concerned the Nazi efforts to preserve the “purity” of the nation. The national purity laws prohibited sexual relations between those the Nazis considered desirable citizens and those who were not desirable. Jews headed the list of those considered not desirable, and this law criminalized sexual relations between Jews and non-Jews. As Meinecke and Zapruder describe these laws in their book, even non-sexual relationships led to convictions. The death penalty (but only for the Jewish person in the relationship) was swiftly carried out.
Standing Up For The Oppressed
You might wonder how many judges resisted these laws, perhaps even resigned in protest over them.
One judge in all of Germany quietly resigned rather than sit on the bench enforcing the laws passed in furtherance of Nazi policies. The rest stayed on the job.
When the war crimes trials came following the war, their defense sounded much like the military officers who said they were only following orders. The judges insisted they were only enforcing the laws passed by the government. Many of them were convicted.
They had forgotten some of the most basic principles of judging:
Do not pervert justice; do not show partiality to the poor or favoritism to the great, but judge your neighbor fairly. (Leviticus 19:15.)
Speak up and judge fairly; defend the rights of the poor and needy. (Proverbs 31:9.)
Hear the disputes between your people and judge fairly, whether the case is between two Israelites or between an Israelite and a foreigner residing among you. (Deuteronomy 1:16.)
The Nazi judges forgot that courts are not tools for promoting the government’s agenda.
They forgot that everyone is to be treated the same under the law, whether a citizen of the chosen nation or a foreigner, whether rich or poor, whether needy or not.
They forgot how to judge fairly, as the verses above repeatedly require.
The Nazi judges forgot that courts are a forum for providing equal justice under the law.
“Thou shalt not be a victim, thou shalt not be a perpetrator, but, above all, thou shall not be a bystander.” — Yehuda Bauer