Playing the Nuremberg card

1 Dr. Annette Weinke, Friedrich-Schiller University Jena Playing the “Nuremberg” card. The GDR and the Politics of International Criminal Law I. Introduction Before 1989, histories of the International Military Tribunal (IMT) at Nuremberg and its aftermath were sharply delineated along a conceptual West-East divide. In the Western interpretation, criminal proceedings against the Nazi leadership served the purpose to revitalize liberal legal principles and standards like “state of laws” (Rechtsstaat), “due process” and “rule of law” in a country where the law had been either trampled or instrumentalized as a means of “totalitarian” repression. Contrary to that the official narrative upheld in the Communist world was that the postwar trials had been based on the common “antifascist” consensus of the antiHitler coalition which was later betrayed by a militaristic and imperialist “West” (Vogt 2000, p. 238). Since the demise of Soviet communism the dichotomous structure of the “Cold War discourse” has been prolonged with respect to anti-Nazi trials conducted in Eastern Europe after 1945. While some scholars take them as an indicator that the United States and Great Britain prematurely abandoned the Potsdam agreements, others claim that former East Bloc countries never intended to subordinate themselves seriously to the norms and spirits of international criminal law. Therefore the Nuremberg body of law was both used as a communist propaganda tool in “show trials” against “counter-revolutionaries” and other “enemies” of the working class, and as a vehicle for the “Sovietization” and “Stalinization” of the police and judiciary apparatus. 2 In this paper, I want to transcend the limitations of the “Cold War discourse” and the “Stalinization” narrative by raising the issue of war crimes policy in the German Democratic Republic (GDR) from a domestic to an international and transnational level. As I want to argue here, Nazi war crimes prosecutions in the GDR can be viewed as a complex and multifaceted “legal field” in a Bourdieusian sense, which included the monitoring and policing of the East German population, the construction of transnational investigation structures among East bloc security forces and the diplomacy of “antifascist” internationalism on the level of interstate and supra-state relations. Building on my previous research on German-German, German-Polish and German-Soviet entanglements with regard to Nazi war crimes prosecutions, I would like to tackle an issue which has hardly been reflected in GDR historiography: Why and how was the GDR able to set itself up as a global guardian of “Nuremberg” and as a promoter of international criminal justice, and this even despite the fact that after 1950 only a small number of domestic Nazi war crimes trials were conducted before East German courts, of those several were used for propagandistic ends? In order to find possible answers and explanations to this conundrum, I want to proceed in two steps: In the first part of my paper, I want to outline Soviet and East German war crimes policy in the early postwar years. In the second part, I will then switch to the international and transnational level by discussing the political and legal ramifications of intensified bilateral state security cooperation and GDR governmental activities toward the United Nations and the socialist “Third World” during the Sixties and Seventies II. East German Nazi War Crimes prosecutions in the era of “Cold War justice” As legal scholar David Cohen recently stated, the project of criminal prosecutions of Nazi war crimes in the two Germanies was an enterprise which not only lasted for several decades, but also “presents one of the most complex cases of transitional justice in the postwar period” (Cohen 2006, p. 59). In the first phase after the German capitulation, jurisdiction for cases of Nazi 3 criminality lay exclusively in the hands of the Allied authorities, who first set up the IMT at Nuremberg while at the same time were conducting national prosecution programs in their individual zones. In the second phase, which started in 1946 with the implementation of Allied Control Council Law No. 10 (CCL 10), the British, French and Soviets – though not the Americans – began to delegate a limited segment of cases to ordinary West and East German courts. Since CCL 10 allowed only the transfer of cases in which the victims had been either Germans or stateless citizens, this practice was restricted to so called “crimes against humanity” cases – a legal stipulation which had not been a category of international criminal law or German law prior to 1945. Although scholarship on German war crimes trials has been sweeping in the last twenty years, the importance of those early postwar trials has been often overlooked. As Devin O. Pendas presumes, this omission might have to do with the fact that the relatively short episode of indigenous German “transitional justice” (TJ) under the supervision of Allied occupation forces challenges the theoretical wisdom of TJ advocates. Pendas, who is currently working on project covering the history of Nazi war crimes trials before German courts in all occupation zones, considers the results of Eastern and Western prosecutions as “counterintuitive” or even “paradoxical” (Pendas 2010, p. 3). Contrary to the premises of TJ scholarship, the legally and morally deficient West German trials did in the end not prevent the emergence of a truly democratic political culture, while the more consequentialist, morally engaged and historically informed East German trials contributed to the erection of an totalitarian dictatorship. Although such generalizations are often problematic and too simplistic, Pendas’ argument is nevertheless important because it raises awareness for a dimension which easily gets obliterated when we talk about denazification and Nazi war crimes trials in the Soviet occupation zone (SBZ): Compared with what happened in the Western zones on this particular field, the SBZ might have at least temporally presented itself successfully as the “better Germany”. Not only did East German authorities pursue the investigations with more efficiency and consistency than 4 most of their West German counterparts. Since its commencement in 1946 it was also far from predetermined that indigenous war crimes trials would become a vehicle for the purge and ideological homogenization of the police and judiciary apparatus. As legal scholar Christian Meyer-Seitz has emphasized in his path-breaking study on the history of early East German antiNazi prosecutions, especially the months until the implementation of the SMAD order No. 201 can be described as a phase characterized by relative judicial autonomy and a lack of politically motivated intervention (Meyer-Seitz 1998). Due to a broad consensus among the parties of the “antifascist-democratic bloc”, also politicians from the social-democratic and liberal camp supported the trials as a decisive aspect of retribution and normative transformation. Eugen Schiffer, for instance, who had been a leading liberal reformer of the Weimar Republic and after 1945 became head of the Central Legal Administration in the Soviet Zone, pleaded for stiffer sentences of Nazi criminals and justified this with the argument that it was vital for the “democratic renewal of the new Germany” and for the “German people themselves” (quoted from Pendas 2010, p. 9). Against this backdrop, the years between 1946 and 1949 became the high-time for German Nazi trials in the Soviet occupation zone. Of approximately 12.500 people who were convicted of Nazi crimes by German courts altogether, more than 8000 people were sentenced by East German courts alone (Frei 2006, p. 31). Despite the numerical cleavages between East and West, there were also important analogies. Although the Allied authorities – with the exception of the Americans – tended to extend jurisdiction to cases where the victims had not been Germans but Allied citizens, the majority of all cases dealt with cases concerning with human rights violations committed before 1939 against Germans. These cases can be distinguished in three main categories: Denunciations (38.3 percent), crimes against political opponents of the Nazi regime, committed in 1933/34 (16.3 percent) and crimes of the so called “Kristallnacht” of 1938 (15.4 percent). By contrast, genocidal crimes against the Jewish populations of Europe and medical patients comprised only a very small share of the convictions; 5 less than 2 percent of all cases dealt with the Nazi extermination program in Eastern Europe (numbers from Eichmüller 2008, p. 628; Weinke 2006, S. 50-53). Also a common feature was the almost complete lack of humanity crimes which had been directly or indirectly committed by German Wehrmacht troops. The announcement of SMAD order No. 201 in August 1947 marked a cesura in Soviet denazification practices. As several scholars have emphazised, it was surely no coincidence that the new course toward Nazi suspects and so called “nominal” Nazis was introduced at a time when tensions between the former Allies aggravated and Germany became a geostrategic hotspot of the looming “Cold War”. From now on, jurisdiction was taken over by special 201 chambers at the East German criminal courts which were mostly staffed with so called “peoples judges”. Contrary to their Western colleagues only few of them seemed to have had a “tainted” past. Instead they were younger jurists and members of the Socialist Unity Party (SED) who had received their legal training instantaneously and in a highly ideologized format. This lack of professionalization and social distinctiveness not only made them more susceptible to all forms of political tutelage, it also increased the tendency to prioritize a popular understanding of “justice” over proceduralist matters (Pendas 2010, p. 3). The sheer magnitude of indigenous East German Nazi war crimes cases as well as a certain fatigue toward the history of GDR “antifascism” have possibly prevented so far that these trials did become the object of serious historical scrutiny. Until empirical scholarship becomes more substantiated, any interpretative attempt must remain rather preliminary. Nevertheless it is probably not just an anti-Communist bias to conclude that SMAD and SED viewed the 201 proceedings as the main testing ground for the envisaged politization, ideologization and social homogenization of the East German judiciary. Therefore it was only consequential that SMAD order No. 201 expanded the range of potential defendants by including individuals who were prosecuted on the grounds of Allied Control Council Directive No. 38. While in the Western occupation zones this stipulation was exclusively applied for lustration purposes, the 201 6 chambers were obligated to use it as a penal law against individuals considered as “unreliable elements” like businessmen, small shop owners and against other “enemies” of the “antifascistdemocratic revolution”. To some extent these differences in the legal practices between East and West also explain the considerable gap in the number of convictions: An unknown number of defendants who were convicted as Nazi criminals in the Soviet zone, got away with relatively light political sanctions in the West. Considering political maneuvering of Soviet and German war crimes policy until 1949, how do the notorious Waldheim trials fit into the picture? A few months after the foundation of two separate German states, the Soviet Union transferred the last 3400 German camp inmates to the custody of the German interior ministry. In April and June under the supervision of the SED a comprehensive program of mock trials was staged on the basis of fabricated evidence. Contrary to Pendas, who sees Waldheim merely as the “confirmation” of a development which had already set in before (Pendas 2010, p. 10), I have argued that those trials continued the primacy of politics in GDR Nazi war crimes jurisdiction while at the same time they also represented a break with the former phase of 201 prosecutions (Weinke 2001, p. 44-48). From the Soviet perspective, Waldheim was most of all conceived as a political litmus test for the SED which had to prove its qualities as a leading ideological force. For the East German communists, however, things were more ambiguous and complicated. On the one hand, the GDR had to fulfill its obligation as a loyal ally in the spirit of “Nuremberg.” On the other, the SED was fully aware that Soviet style “antifascism” could further undermine her already sandy fundament of political legitimization. It were exactly these ambivalences and dilemmas which caused the party exclaiming the convictions of the 3400 former special camp inmates as the last act of denazification on East German territory and winding up of the pending 201 cases. 7 III. From “antifascist” Westarbeit to “antifascist” internationalism After Waldheim, the identification and prosecution of Nazi suspects were longer considered an important policy issue in the GDR. As a consequence of the dissolution of the 201 departments of the political police and their incorporation into the newly founded Ministry for State Security (MfS) in February 1950, the number of convictions dropped sharply from 332 in the year 1951 to only one case in 1957. In the following years the average numbers ranged between 1 and 6 convictions per year – only 1960 and 1962 were exceptional years with 10 convictions each (Werkentin, p. 406). In the context of the Second party conference from July 1952, which proclaimed a course of rigid Stalinization, the Soviet Control Commission (SKK) and the SED decided to reappraise several thousand judgments of the 201 chambers, Waldheim courts and Soviet military tribunals (SMT). Due to the recommendations of a special Politbureau commission, more than 1500 prisoners were pardoned and released in October 1952. Further amnesty waves followed after Stalin’s death and the proclamation of the so called “new course” (ibd., p. 365-370). From the late Fifties to the late Sixties, the GDR did not pursue any consistent war crimes policy. On the one hand, the SED launched a couple of propaganda campaigns against the Adenauer government and high rank members of the West German civil service which targeted the Federal Republic as a hotbed of old Nazis and militarists. These “revelations” caused more attention outside than inside West Germany, why they can be seen as a first step to externalize the problem of unpunished Nazi perpetrators by internationalizing it. However, neither in the context of the Israeli Eichmann trial from 1961 nor during the big Frankfurt Auschwitz trial of 1965 did the GDR connect their “antifascist” Westarbeit to any universalist objectives like human rights or the politics of international criminal justice. Similar to the activities of the GDR Committee for Human Rights, the official propaganda campaigns and the judicial engagement against Nazi suspects in the West remained fixated on its main adversary, the Federal Republic. It 8 merely mirrored the FRG’s apologetic politics of the past, without being able to offer an inclusive political vision or language which might have been interesting for the rest of the world. This profoundly changed in the second half of the Sixities, when two separate developments caused the GDR to overcome the given restraints of the German-German antagonism and embark on a course of “antifascist” internationalism. First of all, the East German State Security, which from 1964 on had started to monopolize all relevant tasks in the context of “antifascist” Westarbeit, was seeking to establish systematic working relations with its partner services in Poland and Czechoslovakia. The rationale behind this move was twofold: On the one hand, SED and Stasi were eager to get their hand on Nazi documents which were either stored in the national archives of those countries or kept as propagandistic ammunition by the intelligence agencies. On the other, the GDR feared that the Central Agency in Ludwigsburg – since 1959 in charge for prosecuting Nazi war crimes in Eastern Europe – would be successful in its attempt to gain access to documentary evidence in Polish and Czech archives. In spite of the famous “Hallstein” doctrin, which – although already weakened – was still in effect in 1964 (Wentker 2007, p. 276-278), this was by no means an unrealistic scenario. Only a few months later, Stasi officers found themselves in a race against West German investigators searching the stacks of the Polish Main Commission for relevant Nazi files. As a consequence of this rather traumatic experience, the security services of the GDR and Poland quickly concluded a bilateral agreement, establishing the regular exchange of important Nazi documents (Weinke 2002, pp. 209 ). The other factor was that around the annus mirabilis of 1968 the SED leadership started to discover the “Third World”, the Non-Aligned Movement (NAM) and the United Nations as potential platforms for her politics of “antifascist” internationalism. Already some years earlier, GDR diplomats and legal scholars had criticized that the GDR needed her own vision of human rights, one that could actually transcend the prevalent notion of Marxist orthodoxy that the abandonment of capitalism and its replacement by a socialist and egalitarian society would 9 automatically end in a global human rights regime. In 1964, legal philosopher Hermann Klenner argued for a socialist conception of human rights by harmonizing the GDR discourse on “antifascism” with political self-determination and peace – at that time the dominant two concepts of Non-Aligned movement and the “Third World” UN human rights discourse. In his book “Studien über die Grundrechte,“ Klenner propagated socialist human rights as superior to liberal human rights. While the latter are supposed to protect the sphere of individual freedom, socialist human rights could have mobilizing and revolutionary effects by unifying the oppressed people of the world in their combat against the imperialism, militarism and neo-colonialism (Ned Richardson-Little 2013, p. 128). With his reconceptualization of the socialist human rights discourse Klenner paved the way for a gradual internationalization of GDR war crimes policy. The opportunity for this came a few years later in the context of the preparations for the 20th anniversary of the UN Human Rights Declaration. The Human Rights Commission of the United Nations planned to underline its different achievements on the field of human rights and international humanitarian law in three particular ways: First of all, it proclaimed 1968 as the UN’s International Human Rights Year, secondly it conceived the first International Conference on Human Rights in Tehran as its official pinnacle and thirdly it succeeded in bringing the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity through the United Nations General Assembly. On November, 27 1968, a clear majority of 58 UN members accepted the Convention, praising it as an important step on the evolution of international criminal law. The history of this interesting document, which has received only very little attention, sheds a light how the Soviet Union and the smaller East bloc states discovered international criminal law as an effective instrument for the mobilization of a broad supranational coalition of countries from the North and the South, while at the same time isolating the Federal Republic from its Western allies. As Marc von Miquel has demonstrated, its beginnings went back to the first months of 1964, when the American Jewish Congress launched a press conference in New 10 York, where its president Joachim Prinz criticized the plans of the Federal Republic neither to extent nor to abrogate the statutory limitation for severe Nazi war crimes like murder and abetment to murder, which would come into effect in May 1965 (v. Miquel 2004, p. 224-326). Shortly afterwards, the GDR government jumped on the bandwagon by publicly condemning CDU/FDP government in Bonn for evading the Nuremberg principles. Although the Polish Communist leadership was seeking to enter in trade negotiations with Bonn, it was nevertheless a staunch defender of a stiffer war crimes policy in West Germany. Therefore it convened a conference of socialist lawyers in June 1964, which became the departure point for several Polish UN proposals dealing with the problem of statutory limitation. In April 1965, only a few weeks after the famous Verjährungsdebatte in Bonn, these initiatives bore fruits. On request of the Human Rights Commission, the General Secretary commissioned the UN Legal Office with an investigation that should ask its member states to voice their opinion on this issue. While the GDR was not even addressed as a potential receiver, the inquiry put the non-member Federal Republic in the uncomfortable position to defend its inflexible and short-sighted handling of the statutory limitation issue before an international audience (UN Economic and Social Council, Human Rights Commission, Question of Punishment of War Criminals and of Persons who have committed Crimes against Humanity, E/CN./906, 15.2.1966). Against this backdrop, it was not such big consolation for the West German government that not only Japan, but also the Scandinavian states Norway and Sweden applied this legal principle on war crimes and crimes against humanity (ibd., p. 59). For the GDR, this constellation offered several opportunities. On the one hand, it was obvious to politicians and diplomats alike that the related issues of human rights, international humanitarian law and unpunished Nazi criminals would be a useful political leverage for improving the international status of the GDR. Since Ulbricht’s visit in Cairo in February 1965, attempts to establish diplomatic relations with “progressive” Third World countries had been staggering because in each single case Bonn had immediately reacted by threatening to cut its 11 development aid (Wentker 2007, p. 281). On the other, references to human rights and “Nuremberg” international criminal law could help to enhance domestic acceptance for the first “socialist” constitution and the first penal code of the “worker’s and peasant’s state,” both supposed to be promulgated in 1968. However, this strategy was not without risks. As it turned out a couple of years later, the incorporation of the human rights language into GDR laws received the attention of a small, but considerable circle of dissenters. Ironically this happened despite the fact that, compared with the more substantive first GDR constitution from 1949, the new socialist rights talk was rather ornamental. Also the self-presentation as a promoter and guardian of “Nuremberg” could easily backfire, since the GDR as a successor state of the “Third Reich” had its own record of unpunished Nazi criminals (Weinke 2002; Leide 2005). Several months after the Tehran Conference, which had been hosted by the Persian monarch and “archetypal modernizing Third World autocrat” Shah Reza Pahlavi (Roland Burke), the GDR foreign ministry launched a massive human rights propaganda campaign. In October 1968, minister Otto Winzer submitted four different declarations to the United Nations General Assembly. In the first document from October, 2nd 1968, Winzer announced his government’s wish to support the current UN initiative for the enforced punishment of Nazi war criminals and to join the envisaged convention as soon as possible. He argued that both the new constitution and the recent penal code would clearly demonstrate his country’s commitment for a rigorous and consistent war crimes policy. In contrast to that, the Federal Republic has not only failed to fulfill its obligations on this particular field, but also refused to open investigations in those cases in which the GDR had offered documentary evidence. With its unwillingness to drop the statutory limitation for Nazi crimes the FRG’s government had put itself in opposition to the community of antifascist and peace-loving nations (GDR foreign policy documents, p. 442-447). Only a few days later, Winzer sent a personal letter to General Secretary U Thant. In this he renewed the GDR’s request from 1966 for becoming a member of the two UN Human Rights Covenants and of the Genocide Convention (GDR foreign policy documents, p. 459-461). 12 As Günther Wieland has emphasized, the UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity had almost no practical effects on Nazi war crimes prosecutions. Even Poland, which had instigated the Convention, preferred to pursue the following cases on the basis of national laws (Wieland 1995, S. 114). Contrary to that, it seemed to have had an effect in Southeast Asia. In 1973, Bangladesh incorporated war crimes and crimes against humanity into his national penal code. The intention of the Bangladeshi government was to prepare a mass trial against almost 200 officers of the West Pakistani army who had fought the East Pakistani independence movement by launching a genocidal war against the civilian population, which had cost almost 100.000 lives (Moses 2012). Six years later, the newly established government of the People`s Republic of Kampuchea followed this example by mounting a public criminal proceeding against Pol Pot and Ieng Sary, the two main principals of the former Khmer Rouge regime. The People’s Revolutionary trial, how it was called, was conducted in August 1979 in the absentia of both defendants. Until 2007, it remained the only body to deal with the mass crimes under the Khmer Rouge leadership between 1975 and 1979 (Howard J. De Nike 2000, p. 22). Apart from a couple of foreign lawyers the world community was largely absent from this exceptional trial. The only state representative was Carlos Foth from the GDR, a high rank prosecutor specialized in Nazi war crimes. The fact that a GDR lawyer was invited to Phnom Penh obviously had to do with the fact that the breakaway of Khmer Rouge forces and the subsequent putsch against the Pol Pot government had been backed by Vietnam, with which the GDR had established close relations since 1977 (Wentker 2007, p. 290). The other reason was probably more symbolic. Since the trial against Pol Pot and Ieng Sary was the first proceeding after the Second World War which hold two former state leaders accountable for atrocities against the civilian population, the GDR may have formed a bridge between “Nuremberg” and the post-violent society of Cambodia. In a way, the GDR delegate served not only as a legal advisor who was asked to bring in his “antifascist” credentials and the experiences of the postwar 13 Nazi war crimes trials. Even as important was that his state also embodied the process of a peaceful reconstruction under Socialist auspices. This specific combination, which formed the core of the “antifascist” reading of “Nuremberg”, seemed to have made the GDR a natural ally for a postcolonial country like Cambodia. IV. Résumé Only recently, the history of postwar war crimes prosecutions has been discovered as a fruitful field for the exploration of transnational political and legal processes across East-West and North-South divides. Parallel to human rights historiography, the particularities of war crimes policy in Eastern Europe and in the “Second World” have received only little attention. As I have tried to demonstrate in my previous outline, GDR war crimes policy should not be reduced to a simple tool of “Sovietization.” This is especially true for the Sixties and Seventies, when the regime started to emancipate itself from Moscow. After a phase of several years the GDR leadership rediscovered the legacy of “Nuremberg” and the language of human rights. The obvious inconsistencies of the West German stance toward international criminal law and the evolution of a socialist rights discourse in the United Nations encouraged the GDR to embark on a course of “antifascist” internationalism. While the campaigning probably did not help much to accelerate UN membership, which only became possible in 1973 in tandem with the FRG, it was more effective in embarrassing the Federal Republic on an international plane. An overlooked aspect of the East German lobbying for “Nuremberg” were its possible repercussions in the Third World. To my mind this is an issue which deserves more historical scrutiny. 14