Commonwealth and Foreign
JUSTICE IN GERMANY
By A SPECIAL CORRESPONDENT
A FEW weeks ago I spoke with a German working man who for a period during 1937 had suffered imprisonment in a Concentration Camp. He was suspected of being impli- cated in Trade Unionist activities and was arrested by the Secret Police, who were anxious to obtain from him the name of another offender (whom, as it happens, he did not know). He suffered a beating, and then for several more weeks had his hands chained behind him during the day, and to the sides of his bed at night. Some of his friends suffered a worse degree of this treatment (which was also intended to force the giving of names) ; they were imprisoned in dark cells, the arms, in a half raised position, being chained to the wall behind them, and at night in bed their ankles were chained as well as their arms. Had the prisoners agreed to divulge the names of their friends this torture at least would have been spared them.
Of his own beating my informant made light. "It was not with whips" in his case. But he had a friend, a man of strong will and great powers of endurance, a man who had gone through the War and was well trained in its horrors. He was repeatedly flogged with whips and so mishandled that he felt his powers of resistance beginning to give way. Fearing he might lose his self-control and betray the names of his friends, he attempted to commit suicide. Even without suffering torture to this degree my friend felt that his morale had been shaken. "That is the worst part—the Demoralisierung ; the effect of the chaining up, the humilia- tion and the gradual loss of confidence in oneself. A beating makes one angry, and it passes, but with the chaining there is no relief; one feels one's will power breaking down—that is the worst. And then the solitude in a tiny cell with abso- lutely nothing to do hour after hour, day after day,-when one has been used to an active life ! That in itself drives one almost mad. I had a pin in the lapel of my coat and I filled up some of my time by scratching patterns on scraps of paper. But when the guard saw what I was doing, the pin was taken away."
My informant was a simple type of superior working man, steady and unemotional. He narrated the incident of the pin as a trifling one. But to me the picture seemed to bring in a flash some realisation of the pitiless exactness with which the colossal great new machine of the National Socialist State carries on its work, breaking the bodies and souls of all who dare to stand in its way, and grinding them to powder. The incident of the pin brought to my mind the words of Herr Freisler (a high official in the Ministry of Justice), who wrote that "the aim of the Law must be not to combat the adversary but to annihilate him."
It is not sufficiently realised outside Germany that the Concentration Camps—the main means employed for the annihilation of adversaries or supposed adversaries—are an almost unprecedented institution in a country which has had an established legal system, for they are entirely outside the jurisdiction of the Law. They are not under the Ministry of Justice, and are controlled by the Secret Police, who may almost be said to constitute "A State within a State." Two years ago a special law was passed giving legal recognition to the State Secret Police as an independent branch of the Administration, and giving legal sanction to the powers already seized and to the practices already adopted. Even the heads of Provincial Governments must bow to 'the orders of the Gestapo. This body, under the dictatorship of Herr Himmler, carries on its independent jurisdiction from which there is no appeal to courts of justice. It makes its own arrests, detains prisoners in the camps without trial for an indefinite period, and inflicts punishments, many of which amount to torture, such as flogging and the use of chains. The Corn-. mandants of the Camps are free to inflict the death sentence ; death indeed often occurs without a "sentence," and is usually notified as "death while trying to escape." Such are the plenary powers allowed to the Secret Police that men and women who have served sentences in prison, on their release are often carried off by the Secret Police and placed in a Camp. There are cases when they have never been 'ward of again. An inmate of a prison may hope at least for a trial—. even if long delayed ; and he can enlist the services of a lawyer, though it is hard indeed for the lawyer any longer to act as a really " free " agent.
Germany's Penal Code, moreover, has been recast. The principle of "no crime, no punishment" has disappeared, or rather the definition of " crime " has been stretched to cover the crimes of " intention " (whether action has fol- lowed or not). This passes easily into the crime of opinion in which an " intention " may be implied. It is not only with the object of wringing from them the names of other persons that prisoners are tortured in "examination prisons" and in Camps. There is also the object of forcing from them confessions of opinion in which, if it differs from the Nazi outlook, a criminal intention may be found to reside.
The new German " law " gives every facility for convicting anyone guilty of holding such opinions, as judged by the final criterion of justice, the National Socialist view of life. In essence all crimes are reduced to an act of treason against the National Socialist State.
The Judge, said Herr Hess (May, 1936), must give his judgement in accordance with the spirit and the history of a State. "There should be no abstract academical law which floats in the clouds." The law must be retarded by National Socialism as -an 'active servant of the Community. The spirit of their State was in reality the spirit of the German people, and of this the Fuehrer was the incarnation: Herr Hess took for his text on this occasion a saying of Treitschke's, "The practice of law is a political activity." Herr Gunner himself, the Minister of Justice, declared (at the Penal Congress, August, 1935) that the question of " guilt " is determined in the New Germany not only by the laws but also by "the sound feelings of the German nation." A judge is not to be bound by the written word, by the rigidity of legal definitions ; he may sentence a man for "any attack on the interests of the National Community," and in doing so he must act "according to a uniform view of life," given to the nation by National Socialism.
This " uniform view of life" includes a highly simplified ethical code. One can find a typical exposition of it in the National Socialist Year-Book for 1938. The maxim is laid down for Party Members that "Right is what is advan- tageous to the National Socialist Party." Till recently the more common formulation of this basic principle has been that of Herr Frank, Minister and Reich Jurist Leader : "Right is what serves the German people and the German race." The development is symptomatic. Right is not even that which (from a materialistic and short-sighted point of view) serves the interests of the people. The people themselves must now have no interests, no standards of conduct, no principles of justice, nor even of religion except in so far as they harmonise with what is laid down by the Party. "The National Socialist pro- gramme is your dogma." is another maxim given in the Year-Book.
Jastice " in Germany has had to give way. The Army has had to give way. Can the Church also be made to give way?- That is -tire question which the trial of Dr. Niernoller is intended- to answer.
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