Tags

, , , ,

Which way goes the Train?

Bonh0effer_WrongWay1An amazing quote, is it not? Spoken by a remarkable and courageous man, to be sure — Dietrich Bonhoeffer. The metaphor of the “wrong train” is commonly taken to refer to his country under the Third Reich. How was one ever to turn the train around and make it go the opposite way?

Most, unlike Bonhoeffer, were content to stay on the train. Some objected, such as Martin Niemöller, and ran down the corridor in the opposite direction. A few attempted to rally opposition and turn the train around, such as the White Rose resistance movement. Generally, all these, like Bonhoeffer, did not survive the war.

At the end of his life, what Job said long ago, “Naked came I into the world, and naked I will depart,” came upon Bonhoeffer literally.

Undoubtedly Job meant in death he would have nothing that “clothed him” in life — that gave him glory. He was a man of much glory, but he would stand before his Maker stripped of his wealth and power. Then his life, his deeds, and his words would be weighed in the balance of impartial judgment. And so will everyone’s.

But for Dietrich Bonhoeffer, Protestant pastor and theologian, Job’s words were not symbolic. He, along with four others, were led to their place of execution naked, then hung, and then cremated that way. Witnesses described his courage:

“I saw Pastor Bonhoeffer… kneeling on the floor praying fervently to God. I was most deeply moved by the way this lovable man prayed, so devout and so certain that God heard his prayer. At the place of execution, he again said a short prayer and then climbed the few steps to the gallows, brave and composed. His death ensued after a few seconds. In the almost fifty years that I worked as a doctor, I have hardly ever seen a man die so entirely submissive to the will of God.”1

The pathos is heightened by the fact that only two weeks later elements of the United States Army liberated the Flossenbürg Concentration Camp, putting an end to all its nefarious and deadly activities. Bonhoeffer’s story for most seems to end there: executed after a show trial — a drumhead court-martial without a shred of legality — just two weeks before the forcible end of terror in that place. An end which would have saved his life.

Wikipedia has a brief record of the life of his judge, Otto Thorbeck:

In 1941 SS Major Otto Thorbeck was appointed the chief judge of the SS and police court in Munich for which SS Colonel Walter Huppenkothen was the prosecutor. On 9 April 1945 under orders from Ernst Kaltenbrunner he presided over a drumhead court-martial. This means it was

  • a trial without witnesses,
  • a trial without records of its proceedings,
  • a trial without a defence for the accused,
  • a trial without any possibility of appeal.

“Drumhead court martial” were the very words the President of the German Federal Supreme Court of Justice, used in a famous speech in 2002 about this. That was Professor Doctor Günter Hirsch, who spoke of the execution of these five and, three days earlier, of Hans von Dohnanyi. He was a friend and relative of Bonhoeffer (his brother-in-law) and he died at the Sachsenhausen concentration camp (pictured):

kz_sachsenhausen“On April 6th, 1945, Hans von Dohnanyi was sentenced to death and executed in the Sachsenhausen concentration camp by an SS drumhead court martial by order of Hitler. On April 9th, Admiral Canaris, General Oster, Army Chief Justice Dr. Sack, Reverend Dietrich Bonhoeffer, and Captain Gehre were also sentenced to death and executed in the Flossenburg concentration camp by an SS drumhead court martial. Presiding judge of the SS drumhead court martial was Dr. Thorbeck, the prosecutor was Walter Huppenkothen.”

Here is the memorial later erected to these brave resistors of the criminal Nazi regime.

Flossenbürg_April_9_1945_Memorial

 

They each have their remarkable and moving stories. When evil is running its course, what are good men to do?

 

So that is one judgment at Flossenbürg: the execution of these five men for treason.

 

 

 

Another judgment at Flossenbürg

Appalled at what they found there, American officers determined that the good Germans of the area should know what went on in their midst. Hundreds of nearby residents were required to view the vivid, disgusting evidence of the inhumanity of the Third Reich. Photos of this process survive.

PhotoOfWoman

The American officers were attempting, obviously, to cause them to consider in their consciences the nature of the government they had so solidly supported. The officers were looking to the future. They were attempting in their own way to turn the train of Germany around. They were anticipating the Judgment at Nuremburg: ‘Does the mere existence of a law or order entitle one to ignore his own conscience? Is murder, cruelty, and oppression moral when legal—or is it always immoral?’

Viscerally – at the gut level – this was the second judgment at Flossenbürg. Spontaneous, unplanned, and certainly unexpected by the local populace; it appears as though the judgment of average Germans on German policy was guilty as charged. Charged by who? Charged by the conscience of man. 

So let us ask the question that no one asks, “Did the train stop going in the wrong direction? Did the Soviet and American armies turn the train around that was Germany?

Before you are too quick to answer, “Oh, of course, nothing of the sort happens in Germany anymore. That’s preposterous!” consider the curious fate of the judge at Flossenbürg. Otto Thorbeck was another willing instrument of the bloody policies of the Third Reich who peacefully lived out his days… as most did. That’s what you must understand to grasp the significance of what Bonhoeffer said.

The post-war Republic of Germany, both formally and personally, did not accept any such judgment of conscience on the evil — but legal behavior —  of the Third Reich.2 Legally, there was no repudiation of the Judgement at Flossenburg until 1995. Formally, publicly, politically, there was none until 2002. {See quotes of Professor Doctor Hirsch below.} 50 to 57 years later is a long time to acknowledge that the train was going in the wrong direction! Could it have taken so long since it seemed. . . since it was. . . so normal?

A Third Judgment

But Herr Thorbeck was a little different than most. At least he faced trial for his actions at Flossenbürg. Actually, three times his case went to court. Convicted of assisting in the murder of these five men in 1955, he was acquitted one year later by the highest criminal court of Germany — the Federal Criminal Court in Karlsruhe (pictured below). It is the court of last resort in matters civil and criminal.

FCC_Karlsruhe

To realize the significance of that final innocent verdict, we have to turn again to the 2002 speech of Professor Doctor Günter Hirsch:

“Even as the law stood then, the procedure violated formal and substantive law in the most serious way. For example, the SS drumhead court martial did not at all have jurisdiction over the defendants who were not SS members, the court was not properly staffed with the concentration camp commander as assessor, no defense attorneys had been appointed, there was no clerk of the court, the defendants had obviously been tortured, the evidence was not according to the rules. Therefore after the end of the Nazi regime, Huppenkothen and Thorbeck were accused of aiding and abetting murder, among other things. The German Federal Supreme Court dealt with this case three times. With its first two judgments it repealed the respective acquittals by the jury court and pointed out in an impressive way how laws that do not even strive for justice and grossly disregard legal convictions about the value and dignity of human personality common to all civilized peoples, create no right, and a conduct according to such laws remains wrong.”

That is to say, there was a higher law than the written law that the judges, even in the Third Reich, were accountable to. Call it the natural law in legal terms, the instinctive knowledge of good and evil in more spiritual terms, or simplest, call it the conscience: the judge whose authority is known to all men. . . by which all men will be judged.

Yet the third time around that same court “exonerated him on grounds that the killings were ‘legal’ because the Nazi regime had the right to execute ‘traitors’.” You could say the judges re-convicted the five. They were traitors, then, and so Judge Thorbeck judged rightly. As the then President of the German Federal Supreme Court of Justice said in 2002:

“Since hereupon, in the third round the defendants were sentenced to severe penal servitude for aiding and abetting murder, the German Federal Supreme Court changed its view fundamentally, repealing these convictions in 1956 and acquitting the defendants of the charge of aiding and abetting murder with the court martial proceedings. In the statement of reasons the German Federal Supreme Court viewed the SS drumhead court martial as a proper court, the obvious mock trial as due process, and the sentence according to then applicable law. The statement of reasons is a slap in the face. The resistance fighters are attested having committed treason and high treason “according to the then applicable laws of inarguable legal effect.”

Attorney Thorbeck would go on to die “in peace” twenty years later 1976 in Nürnberg. Clearly to the judges at Karlsruhe, the manner of the trial of the five men, a trial without appeal, defense, records, or witnesses, did not affect the legality or even the justice of the proceedings. But perhaps justice was not a matter that weighed in their balance. They did after all uphold the principle of legal certainty: a law is a law regardless of its nature or who passed it.3

Whether a law is good or bad, just or unjust, is up to neither the individual conflicted in his conscience by the law or the judge enforcing the law. This is the defenselessness Gustav Radbruch spoke against of individuals and judges before positive law. (Five Minutes of Legal Philosophy)

Since the state had the power to execute opponents, it had the right to do so. This is the classic statement of the reach of positive law. Such reach the eminent legal philosopher Gustav Radbruch sought to shorten in his much quoted writings after the war. I would like to say very influential writings, but are they? They do not seem to be too influential to us.

Judge Thorbeck’s acquittal was not the end of the travesty of justice that President Hirsch recounts in post-war Germany.

The consequences of this judgment were devastating. Not a single judge, not a prosecutor was sentenced in the Federal Republic for the thousandfold justice crimes committed during the Third Reich. After the sentence of Judge Rehse, who had participated along with Roland Freisler in dozens of death sentences on resistance fighters at the Volksgerichtshof (People’s Court), was finally repealed in 1968, the prosecuting attorney’s offices dropped all investigations of former judges.

These noble resistance fighters, and many others, were, as President Hirsch says:

“…murdered by criminals who called themselves judges. Ultimately, the perpetrators were acquitted of this judicial murder by a judgment of the German Federal Supreme Court in 1956, with the consequence that not one of the judges who had passed 50,000 death sentences during the Nazi rule, was held accountable.

So let us be clear here: it is the individual’s conscience that was repudiated, suppressed, and rendered powerless during the Third Reich — and such judgments were upheld for at least fifty years by post-war Germany. At the highest levels of German government the right of the state to act in any way it saw fit, regardless of morality and the judgment of conscience, was upheld after the War. This view still stands, fundamentally.

That is to say, this view holds that governments are not bound by concerns of conscience and morality and that they have every right to punish individuals who act on such concerns in defiance of their evil and oppressive laws.

The International Military Tribunal

Major Thorbeck returned to private practice in Nürnberg after the war. It would be interesting to know what his thoughts were about the famous Judgment at Nürnberg. That was the trial of high Nazi officials by the International Military Tribunal (IMT) where a number were executed for “crimes against humanity.”

The International Military Tribunal’s judgments of September 30-October 1, 1946, rejected the contention of a number of the defendants that they were not legally responsible for their acts because they performed the acts under the orders of superior authority. According to the tribunal,“the true test … is not the existence of the order but whether moral choice (in executing it) was in fact possible.”4

Holding those culpable who carried out such acts was evidently, to the courts of Germany, an after the fact (ex post facto) attribution of guilt. Indeed, there are many legitimate questions about the validity of “victor’s justice.” The fundamental question the IMT was concerned with was whether, as they claimed, men such as Otto Thorbeck had no ability or even obligation to consider the justice of what they were doing. They were simply following orders; they were obeying the law. Justice was not their concern. This is what being “defenseless” meant that Gustav Radbruch spoke of:

A law is valid because it is a law, and it is a law if, in the general run of cases, it has the power to prevail. This view of a law and of its validity (we call it the positivistic theory) has rendered jurists (judges) and the people alike defenceless against arbitrary, cruel, or criminal laws, however extreme they might be. In the end, the positivistic theory equates law with power; there is law only where there is power. (First Minute of Legal Philosophy)

In conclusion

The prosecutor and judge in Flossenbürg were only obeying orders from on high to execute these men. Doing such established their innocence or actually, removed all question of culpability. The Federal Criminal Court agreed in 1956 and disagreed in 1995. That’s true.

But did the direction of the train change?

Positive law, enforcing the agendas of whatever power groups can gain sway, seem to be the order of all things in Germany. To us, that is. There seems to be little to no restraint of natural law – of inalienable rights (even of the inviolable rights in the Basic Law of Germany) – upon lawmakers. Little respect for the family, almost no respect for religious beliefs. In fact, it seems more and more today like it was several generations ago.

But did it ever change? 

 

 

 

  1. Eberhard Bethge, Dietrich Bonhoeffer: A Biography, p. 927. There are those who dispute this account and maintain it was a tortuous, difficult, extremely painful death. See the Wikipedia entry referenced above.
  2. As Professor Thomas Schirrmacher recently said: “The fact that the laws of a nation make something lawful doesn’t make it right,” he said. “Everything Hitler did in Germany was allowed by the law. He never moved until the law allowed him. Applying the national law of Germany at the time you couldn’t have convicted Hitler of a crime. But what he did obviously and dramatically was a crime against humanity.” Speaking personally, resistance figures such as Lilo Fürst-Ramdohr spoke of their rejection after the war for having opposed Hitler: “Lilo described how hard her life had been after the war. Her mother and stepfather really didn’t want to have much to do with her, because they saw her – still! – as a traitor to Germany.
  3. Perhaps the reader remembers the words of Gestapo investigator Robert Mohr to Sophie Scholl: Sophie: So why do you want to punish us? Interrogator: Because it’s the law. Without law there is no order. Sophie: The law you’re referring to protected free speech before the Nazis came to power in 1933. Someone who speaks freely now is imprisoned or put to death. Is that order? Interrogator: What can we rely on if not the law, no matter who wrote it? Sophie: On your conscience. Interrogator: Nonsense! Here is the law, and here are the people. As a criminologist, it is my duty to find out if they coincide, and if not… to find the rotten spot. Sophie: The law changes; conscience doesn’t.” For more, see the post, “Would the White Rose Blossom Today?
  4. “War Crimes Trials,” Encyclopedia 2000