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Hard as Nails

A CONSIDERATION OF NATIONAL SOCIALIST CRIMINAL LAW

Jörg Arnold

With Kai Ambos from Göttingen, one of the most renowned and at the same time most critical criminal law professors of the generation 50 plus has written a book on National Socialist criminal law.(1) This deserves a special mention not only because of the scientific topic itself, but also because it provides valuable suggestions for dealing with right-wing, Nazi or – as Matthias Quent, Director of the Institute for Democracy and Civil Society (Instituts für Demokratie und Zivilgesellschaft) in Jena, calls it – pre- or proto-fascist symptoms of our time. The impulses for such disputes are only explicitly mentioned in a few places in the book, but they are self-explanatory for the politically and historically interested reader.
At first glance it is not a question of establishing a one-dimensional continuity between ›National Socialism‹ and today’s capitalism. Nevertheless, it must not be overlooked that the statement of Max Horkheimer, »But whoever is not willing to talk about capitalism should also keep quiet about fascism«, is topical and pre-fascist or proto-fascist symptoms as a creeping poison run through today’s social reality and are thus a frightening continuity – despite all discontinuity – becomes visible. There is no such thing as a »wooden hammer thesis«, as Thomas Schmid recently described Horkheimer’s phrase in the daily newspaper Die Welt. By no means has it been determined that an explanatory approach that sees the causes of fascism not at least from a materialistic perspective, i.e. economically driven, has become obsolete. This is also shown by the recently republished lecture by Theodor W. Adorno dating from 1967, Aspekte des neuen Rechtsradikalismus (Aspects of Contemporary Right-Wing Radicalism – A Lecture),(2) some passages reading like a commentary on current developments.
It should not go unmentioned that especially historians from the GDR like the recently deceased researcher of fascism and longtime author of the daily junge Welt, Kurt Pätzold could also refer to Horkheimer and Adorno for good reasons. The fact that the concept of fascism has recently come to the fore again in a usable way is also a consequence of the work of GDR scholars such as Kurt Pätzold. But if one really wanted to take this into account, this term would have to be replaced by that of by ›National Socialism‹ in German social science. Kai Ambos’ book would then need to be called ›Fascist Criminal Law‹.(3) In the aforementioned essay, Horkheimer criticizes those intellectuals who no longer took the weapon of the critical spirit going to the root, but established themselves in ‘new humanism’. Without equating the historical epochs, it is also important in today’s society that intellectuals such as scientists, artists, writers and cultural workers declare their clear “no” to the increasingly spreading poison of right-wing radical and Nazi ideas, to racist and misanthropic attacks on democracy and the rule of law. There are many encouraging examples of this. “Stand up and say no,” sings Konstantin Wecker on behalf of so many. Andreas Fischer-Lescano, Professor of Public Law and International Law at the University of Bremen, has recently shown how important it is to become aware of the current mechanisms of how the ideas of right-wing intellectuals are carried into jurisprudence.(4)

THE LANGUAGE OF THE NAZIS

Kai Ambos understands Nazi criminal law as racist (anti-Semitic), nationalistic (›Germanic‹) and totalitarian, a continuation of the authoritarian and anti-liberal tendencies of German criminal law at the turn of the century and the Weimar Republic, a continuity that continued after 1945. One could characterize Nazi criminal law as a politicized and radical continuation of the neoclassical and finale Verbrechenslehre (final theory of crime).
It was Victor Klemperer, the Dresden-based Jewish professor of Romance philology, persecuted by the Nazis, who after 1945 dealt with the language of ›National Socialism‹ and its effects. Klemperer describes the »poverty« of the Lingua Tertii Imperii (LTI) as one of its main features: It does without any nuances or variations and gets by with a small stock of catchwords and phrases. LTI only knows the mode of agitation: »[E] verything was oration, had to be address, exhortation, invective« (p. 22, in the English version; p. 42 in the German version, ve).(5)
Uniformity is not a deficiency for the language of the ›Third Reich‹, Klemperer recognizes: it only turns language into a suitable instrument of power. Through constant repetition, the same templates of expression are punched into people’s memories. At some point they become so commonplace that even opponents and victims of the Nazis use them without reflection.
In a different chapter of his book, Kai Ambos, like the former judge at the Federal Supreme Court, Thomas Fischer,(6) claryfies that a draft law of the right-wing party Alternative für Deutschland (AfD) in the German Bundestag, which aims to punish recidivists more severely in the future, linguistically breathes the evil spirit of ›National Socialism‹.(7)
Initially, the draft took up the basic idea of the 1933 Nazi habitual offender law (NS-Gewohnheitsverbrechergesetz). According to Ambos and Fischer, the AfD bill is an example of the (backward-looking) continuity of Nazi criminal law. The actual scandal consists in the fact that it makes National Socialist concepts (»burnt words«, »verbrannte Wörter«),(8) and thus criminal-political content, presentable again: ›community rules‹ (›Gemeinschaftsspielregeln‹), ›particularly socially harmful habitual criminals‹, ›locking away‹, ›harmful inclination‹, ›character test of the perpetrator‹, ›negative attitude‹, ›stubborn hostility to the law‹.
The draft thus proves to be an expression of an attitude-oriented criminal law for perpetrators, for whom it is not a question of the concrete act, but of the »guilt for leading a life« (›Lebensführungsschuld‹, Edmund Mezger). Mezger, also quoted by the AfD, emphasized already in 1934 the ethnic and racial orientation of the ›new‹ criminal law, identified »typical groups of social enemies« and demanded the »elimination of components harmful to the people and to race« from the national community (Volksgemeinschaft). For Mezger the guilt was to be measured not only by the deed, but above all also by the nature and personality of the perpetrator (Täterstrafrecht, perpetrator criminal law), more exactly by the life management and decision guilt (Entscheidungsschuld). The draft takes up this point when it refers to the »judicial character examination of the perpetrator« and emphasizes the »relevance of the perpetrator’s past life«. The draft also takes the further step from offender’s criminal law to convictions’ law, since »the negative convictions of the offender [...] are to be appreciated accordingly«.
Inasmuch as the draft seeks to make the concept of the “harmful tendency” the criterion of an aggravation of punishment, the perpetrator-centered, criminal-biologically founded NS view will be made acceptable again. In this light, the Nazis introduced the term into German law by means of the ›Verordnung über die unbestimmte Verurteilung‹ of 10 September 1941, and later incorporated it into the Reichsjugendgerichtsgesetz of 1943. Ambos emphasizes that it does not make the matter any better that the term is still present in the German Juvenile Court Act (§§ 17, 27, 30 JGG); it only proves the (future-oriented) Nazi continuity within the Federal Republic’s criminal law. However, the AfD draft goes one step further by attempting to transpose the concept of juvenile criminal law (which is more oriented towards the offender, starker täterstrafrechtlich ausgerichtet) into adult criminal law.
According to Fischer, the AfD has nothing to offer with regard to criminal law other than to punish foreigners as severely as possible and otherwise to club everybody with a truncheon. Different statements of AfD politicians in parliaments clearly show their orientation, for example in the regional parliament of Baden-Wuerttemberg: »The AfD parliamentary group gives a clear refusal to all attempts to touch a condemned criminal gently. Criminals must feel the full force of the law, victim protection instead of perpetrator protection applies. In criminal law, the focus must again be on the deterrent effect of punishment«.(9)
On 16 October 2018, AfD Bundestag member, Roman Johannes Reusch, presented a draft law to improve internal security.(10) The proposed amendments to the law ultimately bear witness to the goal of abolishing the rule of law. Intensification of penalties in the sense of a pure theory of retaliation, abolition of the remedy of revision and replacement by an appeal for acceptance, extension of pre-trial detention in the event of a risk of recurrence, innovation of the penal execution law through atonement appropriate to the guilt as a further enforcement objective, intensification of the law on foreigners through the introduction of preventive detention, which is to last as long as the person concerned poses a threat to the security of the Federal Republic of Germany or the general public. These are only a few examples from the draft law.
Even so the draft had no chance to be implemented by parliament, it should not be overlooked that it shifted the discourse further to the right. In this way, alliances that are hostile to the rule of law are created, and even more so, dangerous continuities are revealed here, too.
This can be seen in the official taboo word of 2018 (Unwort des Jahres 2018) ›Anti-deportation industry‹. In May 2018 Alexander Dobrindt, the chairman of the CSU regional group in the German Bundestag, introduced the word as an obvious combat term into the political discussion: According to Dobrindt, an ›aggressive anti-deportation industry‹ sabotages the efforts of the constitutional state and endangers public security. Dobrindt thus directed himself both against the legal protection of refugees and against those lawyers who represent refugees; this also includes criminal defense lawyers, because deportations are often associated with the criminalization of refugees by the judicial authorities as well as with real crime. According to Dobrindt, virtually all refugees to be deported are criminals.

STAFF CONTINUITY

Ambos refers in detail to the continuity in higher education after 1945. This continuity not only explains the widespread silence, but also the lack of accountability of numerous charged lawyers, as they were protected by the highest level of the Adenauer government and the ›war crimes lobby‹, which was active until 1989, above all with the help of the Federal Foreign Office,(11) From a moral-philosophically and moral-historically perspective, according to Ambos, the continuity of personnel can be traced back to the fact that Nazi morality was so strongly anchored in German society that it could still shape society long after 1945 and was able to guarantee the integration of post-war society including the Nazis living within it.
In his book Furchtbare Juristen: Die unbewältigte Vergangenheit der deutschen Justiz the legal historian and criminal law scholar, Ingo Müller, has impressively described the restoration of the German justice system. The book by historian Norbert Frei Vergangenheitspolitik: Die Anfänge der Bundesrepublik und die NS-Vergangenheit (The Beginnings of the Federal Republic of Germany and the Nazi Past), published in 1996, and the recently published book by journalist Willi Winkler Das braune Netz. Wie die Bundesrepublik von früheren Nazis zum Erfolg geführt wurde (The Brown Net. How the Federal Republic was Led to Success by former Nazis) are to be read as revealing supplements. Therefore, it is not surprising that the prosecution of Nazi crimes in the Federal Republic was not carried out in the necessary manner. Müller paints a generally contradictory picture for the history of the Federal Republic of Germany of how the Nazi past was dealt with under criminal law. It records the efforts and ›successes‹ of Federal German legislation and the judiciary for a policy of impunity, ›to let as many Nazi criminals as possible escape unscathed‹, as well as the Frankfurt Auschwitz trials at the beginning of the 1960s.
But Ingo Müller also takes a critical look at the criminal ›mastery‹ of the Nazi past in the GDR, showing that after the ›Waldheim trials‹ had been concluded in the early 1950s the problem had been declared solved. Obviously, because one did not want to impose too much on the population of former Nazi followers, who also existed in the GDR, which is why only a few exemplary criminal trials against Nazi criminals took place. And in the most recent publication presented by Norbert Frei and other historians, it is stated with regard to the GDR that the anti-fascism in the GDR had been ambivalent in so far as it had a broad effect, but historical National Socialism had not been an »object of reflective contemplation«, so that a feeling arose to be »free of historical responsibility«(12) This view probably stands in a certain contrast to Hans Bauer’s article published in the junge Welt on 28 August 2019, whereas there is, among other things, talk that anti-fascism in the GDR  was »not only prescribed«.(13) Both publications serve the purpose of a further academic examination of the German-German politics of the past in relation to the Nazi era, but are also of importance with regard to a further examination of the causes of the symptoms of right-wing radicalism and the reaction of criminal law that exist in the two so different social systems.

NS RELICTS

Several professors of criminal law had recently dealt with the actual influence of National Socialism on the criminal law of the Federal Republic of Germany. In the course of this work, various relics of the Nazi era were found in the applicable StGB, such as parts of the offences of coercion, blackmail, embezzlement, forgery of documents, but also the entire system of measures for improvement and security. The continued existence of the crime of murder in today’s StGB, which was introduced in 1941 and goes back directly to the infamous later president of the People’s Court (Volksgerichtshof), Roland Freisler, is clearly criticized.
In 2015, a commission of experts set up by the then Federal Minister of Justice, Heiko Maas, to reform the rules on homicide and to overcome the spirit of National Socialism that characterized the paragraph on murder came to the conclusion that the terms ›perpetrator types of a murderer‹ or ›perpetrator types of a manslaughter‹ were outdated. These terms should be erased from the law. Instead, the future must be about the ›offence‹. Unfortunately, the Commission argued that life imprisonment should be maintained, but that life imprisonment should no longer be a mandatory consequence of murder. Instead, the judge should be given the opportunity to take mitigating aspects into account. The draft law on the reform of homicide, which was subsequently drafted in 2016, was apparently dropped without a sound or a smile after it had become clear that it could not be enforced against the CDU/CSU. The emeritus director of the Max Planck Institute for Foreign and International Criminal Law in Freiburg/Brsg., Albin Eser, had already previously drawn attention to the fact that similar reform initiatives dating back to the 1980s had disappeared into the drawer.
There is a continuity insofar as Nazi criminal law can be understood as a strong pendulum swing within a far-reaching historical line of development from a liberal constitutional criminal law emerging from the Enlightenment era to an ›enemy criminal law‹ (Feindstrafrecht) of modernity. The ›enemies‹ of modernity, according to the Bonn-based criminal law teacher Günther Jakobs’ term ›enemy criminal law‹ were initially the socalled Islamist terrorists following the 9/11 event, according to which these perpetrators should not be recognized as legal entities (bürgerliche Rechtspersonen). Thus, constitutional criminal law is not an option for enemies of civil society.
In the meantime, crime ›discovered‹ more enemies. ›Enemies‹ now include all those who are being tried for proximity to or membership of PKK (Partiya Karkerên Kurdistanê, Kurdistan Workers’ Party). ›Enemy‹ also includes demonstrators who actively opposed the 2017 G-20 summit in Hamburg and are now on trial. Critical criminology perceives this development as the establishment of ›criminal terrorism law‹.

CHALLENGES

As for crimes committed with a right-wing extremist background, the application of ›enemy criminal law‹ has so far not been discernible; such a law should not and must not be postulated in this respect. Nevertheless, it is striking that the extension of the powers of intervention and prosecution in ›criminal terrorism law‹ are unlikely to be applied to crimes with a right-wing extremist background in the same way as to the ›enemies‹ mentioned above; still, they constitute an attack on democracy and the rule of law. According to Wilhelm Heitmeyer, a social scientist from Bielefeld, these crimes are a particularly serious and extreme part of ›group-related misanthropy‹. Clearly, a constitutional criminal law must react consistently to crime, which is based on ›group-related misanthropy‹, but should treat suspects and accused persons as legal entities rather than ›enemies‹. The police and public prosecutors’ offices must, however, above all recognize and clarify their tendency to not to recognize (or not want to recognize) crimes with a right-wing radical background as such; the NSU (Nationalsozialistischer Untergrund) investigations are just an example for racist motives initially being ignored and instead the victims’ families were targeted by the police and public prosecutors’ office.
The  demand,  published  in  the  journal Strafverteidiger, that the prosecution and punishment of right-wing extremist or racist crimes needs to become more effective is correct. It is also correct to criticize questionable decisions, such as the termination of the criminal proceedings against Alexander Gauland by the public prosecutor’s office in Mühlhausen for hate crime (Volksverhetzung); Gauland, during the recent election campaign, publicly stated that he hopes for being able to ›dispose‹ Aydan Özoguz, the Integration Commissioner at that time, to Anatolia. Also justified is criticism of the recent verdict of the Berlin Regional Court (Landgericht), which claimed the serious hate comments against Renate Künast (B’90/Die Grünen and member of the Bundestag), on the Internet to be covered by the freedom of expression. Equally justified seems to be the criticism of the Chemnitz Regional Court’s judgement (22 August 2019), according to which law was »spoken in the name of the angry people«. The judgement was based on the case of a Chemnitz citizen who was killed in August last year. After the crime, AfD and the right-wing movement ›Pro Chemnitz‹ organized demonstrations, resulting in marauding crowds within the city. Police reports highlight »masked« people »armed with stones«, »searching for foreigners« and attacking a Jewish restaurant. The Syrian accused of the killing was convicted by the Chemnitz Regional Court despite the probably extremely meagre evidence. It was not only the defense counsel who criticized that the verdict had been fixed from the first day’s trial. A guilty party was needed so that Chemnitz could regain its peace and tranquility.
Nevertheless, it must be emphasized that constitutional criminal law remains limited in the context of right-wing extremist and racist-motivated crimes and cannot be regarded as a ›panacea‹ of group-specific misanthropy. Constitutional criminal law alone offers no guarantee for eliminating a pre-fascist or proto-fascist climate, within which crimes such as the murder of the politician Walter Lübcke or the anti-Semitic attack on the synagogue in Halle are possible even after the crimes of NSU., Stephan Brandner (AfD), the chairman of the Bundestag’s Legal Affairs Committee, denied on Twitter any anti-Semitic, racist and misogynistic dimension of the Halle attack, thus demonstrating the moral co-responsibility of the AfD and their peers for such hostility to humanity.
Kai Ambos’ book Nationalsozialistisches Strafrecht is a reminder to be aware of certain continuities and real threats to the rule of law and to democracy; this comprises to question and to change the existing social – also systemic – roots. Above all, this includes the development and permanent safeguarding of an anti-fascist consensus.

Prof. Dr. Jörg Arnold is a criminal law scholar in Freiburg/Brsg. and Münster and a member of the extended RAV board. Reprint from »junge Welt«, 26.10.2019. We are thankful to the publisher and author. Translation by Volker Eick.

(1) Kai Ambos is Professor of Criminal Law, Comparative Law, International Criminal Law and International Law at the University of Göttingen. See also the review of Ambos’ book by the author in: Strafverteidiger 11/2019. Meanwhile the volume is also available in English, entitled ›National Socialist Criminal Law. Continuity and Radicalization‹ by the same publisher.
(2) Theodor W. Adorno: Aspekte des neuen Rechtsradikalismus. Berlin 2019.
(3) Ambos, however, points to the often-mentioned difference between Nazi Germany and fascist Italy – also propagated   by Nazi protagonists themselves at the time – »according to which the Volksgemeinschaft is the center of attention and the state has to serve its purpose, while the nation is realized in the total state« (Ambos, in the book reviewed, p. 32, Fn. 86).
(4) https://verfassungsblog.de/rechte-und-rechtswissenschaft/.
(5) Victor Klemperer, The Language of the Third Reich. LTI – Lingua Tertii Imperii. A Philologist’s Notebook (translated by Martin Brady). London 2013; Victor Klemperer, LTI. Notizbuch eines Philologen. Berlin 1947.
(6) Fischer, https://www.spiegel.de/panorama/justiz/strafrecht-rueckfaelle-und-gewohnheitstaeter-kolumne-a-1257312.html.
(7) https://t1p.de/Alles-was-recht-ist.
(8) Vgl. Matthias Heine: Verbrannte Wörter. Wo wir noch reden wie die Nazis – und wo nicht. Berlin 2019. See also: Heinrich Detering: Was heißt hier ›wir‹? Zur Rhetorik der parlamentarischen Rechten. Ditzingen 2019.
(9) https://t1p.de/Opferschutz.
(10) https://dip21.bundestag.de/dip21/btd/19/050/1905040.pdf.
(11) See Felix Bohr: Die Kriegsverbrecherlobby. Bundesdeutsche Hilfe für im Ausland inhaftierte NS-Täter. Berlin 2018.
(12) Norbert Frei et al.: Zur Rechten Zeit. Wider die Rückkehr des Nationalismus, Berlin 2019.
(13) https://t1p.de/Bauer.