More on Nazi and Soviet Executions

It is no surprise at all that the number of executions in Germany in 1933 increased tenfold compared to the previous year (see Figure). Practically all death sentences were handed out for political crimes (mostly for “high treason”) by the newly established People’s Court and other special political courts.

To put this increase in the proper perspective, it is necessary to note that during the last six decades on Russian Empire there were about nine executions each year. All for political crime – there was no death penalty for common criminals in Russia, even for murder. Which is no surprise either – in Russia a human life was always far less valuable than in civilized Europe.

After Bolsheviks came to power and won the Civil War, went up about 46 times – almost five times more than in Germany when Nazis came to power. The next year six times more individuals were executed. Although Bolsheviks made aggravated murder punishable by death, most of the death sentences were meted out for “political crimes” (i.e., to real or perceived opponents of the Nazi regime).

Comments to Charts on Executions

A chart is definitely more valuable than a thousand words so let’s take a look at some charts on death penalty in Nazi Germany and the Soviet Union (to put the former into a proper perspective).

From 1907 to 1932 (i.e. including World War I which significantly increased the number of death sentences as treason became much more dangerous), Germany (the Second Reich and the Weimar Republic) together issued 1547 death warrants, of which 393 (just over one in four and roughly sixteen a year) were executed.

In the last years of the Weimar Republic (which grew more and more lenient towards capital offenders), executions were in the single digits – and always for aggravated murder. In fact, in the latter only a murder in the first degree (i.e. with aggravating circumstances) carried a death sentence.

Nazis not only returned high treason to a list of capital crimes (which was the case in the Imperial Germany), but drastically expanded that list with the Reichstag Fire Decree.

Which now included conspiracy to commit murder of a government official of a national or state level, armed insurrection (“disturbance of the peace”), arson, acts of terrorism (even if they did not lead to a loss of life) and a political kidnapping.

Hence it is no surprise at all that the number of executions in Germany in 1933 increased tenfold compared to the previous year. Practically all death sentences were handed out for political crimes (mostly for “high treason”) by the newly established People’s Court and other special political courts.

Interestingly enough, although the laws of 1934 and 1936 further expanded the list of political crimes punishable by death, it lead to a relatively small increase in the number of executions from 1934 to 1939. Apparently the system of eliminating political opposition and prevention of resistance activities worked well enough.

The war predictably changed everything.

The next chart reflects a radical change in death sentences passed by the Nazi special political courts with the beginning of World War II. The dominant offence was “defeatism” and “undermining the war effort”.

The Nazi logic was simple and straightforward (as were their motives). They completely (and erroneously) believed that the only root cause of the defeat of Germany in World War I was the “stab in the back” by defeatists and traitors (and, of course, Jews).

Jews were dealt with by an entirely different system (of forced emigration and later by extermination by Einsatzgruppen death squads and subsequently in the death camps) and other “internal enemies” were to be deterred (i.e. stopped cold) by ruthless death sentences handed out by the special courts.

However, to put these numbers in the right perspective, it is necessary to compare them with the number of executions in the Soviet Union (just as I did with the number of inmates in concentration camps). Obviously, both before the war (in 1933-39) and in wartime.

Even without truly horrendous jump during the Great Purge (the number of executions in the USSR went up 300 times) it is evident that prior to the World War II the Communist regime was far, far more murderous than the Nazi one (in the USSR, like in Germany, the overwhelming majority of executions were for political crimes).

The Great Purge of 1937-38 was an outlier so I did not include these numbers (353,074 and 328,618 executed respectively) into this chart. Which is more than impressive even without these numbers.

Even if we adjust for the differences in population size (at that time the population of the Soviet Union was roughly 2.5 times that of the Nazi Germany), the picture will not change a bit.

The next chart is actually quite informative. The year 1939 basically continues the enormous difference between the Bolshevist and the Nazi regimes at peacetime, the former being far more murderous than the latter.

The next year the Nazi Germany is at war but the Soviet Union is not. In addition, the Great Purge in the USSR is finally over. Consequently, the number of executions in the Third Reich goes way up (by an order of magnitude) and in the USSR goes down by 35%. As the result, on a relative scale (taking into account the difference in population), in 1940 the Nazis actually carried out more executions than the Bolsheviks.

In 1941, the Soviet Union enters the war and experiences the jump in the number of executions similar to the one experienced by the Nazi Germany in 1940 (by a factor of five). The German blitzkrieg on the Eastern front fails and its victory in the World War II is in doubt for the first time; so it is not a surprise at all that the number of executions goes up almost by half (by 44%, to be more precise).

In 1942, the situation for Wehrmacht deteriorates further, the German population begins to experience wartime fatigue… and the number of executions in the Third Reich predictably increases by about 40% (about as much as it did in 1941).

The situation in the Soviet Union changes far more drastically. During the first half of 1942, the Red Army continued to suffer humiliating defeats and enormous losses of territory, personnel and military hardware.

On July 28th, 1942 Soviet dictator Joseph Stalin was forced to issue an infamous (and very much draconian) Order No. 227 (aptly nicknamed “No Step Back!”).

Almost a million (!) Red Army soldiers and officers was court-martialed; 135,000 were executed by a firing squad. Half of those whose lives were spared were sent to penal battalions and penal companies (with about 50% chance to be killed in action) and half was imprisoned in the GULAG (which was not much better).

Hence it is no surprise that number of death sentences meted out by Soviet civilian courts tripled from 8011 in 1941 (half of which was the time of peace) to a whopping 23,278 in 1942.

After the Battle for Stalingrad the situation on the Eastern front changed radically for both sides. For the Red Army for the best and for the Wehrmacht for the worst. Hence the number of carried out death sentences in the Third Reich predictably exceeded the number of executions in the Soviet Union (even without adjusting for the difference in the size of population). 1944 was largely the same for both sides.

Death of Ronald Freisler

The vivid personification of the life and death of the People’s Court was Dr. Roland Freisler – the flamboyant (to put it mildly) Judge President of the court in 1942-45. A born showman, he made just about every session of the court a show which got more and more depraved (and even disgusting) every month.

Even Dr. Ernst Kaltenbrunner, head of the RSHA (and a lawyer himself), complained in a memorandum that Freisler’s “cheap manner did not “correspond entirely to the dignity of the highest German court of justice”.

By that time there was no dignity left. On the morning of February 3rd, 1945, Freisler was conducting a Saturday session of the People’s Court when USAAF strategic bombers attacked Berlin (which they did on an almost daily basis).

Hearing the air-raid sirens, Freisler hastily adjourned the court and ordered that the prisoners before him be taken to an air-raid shelter, but stayed behind to gather apparently important files before leaving. A sudden direct hit on the court-building at 11:08 caused a partial internal collapse, with Freisler being crushed by a masonry column and killed while still in the courtroom.

Apparently nobody regretted his death. Luise Jodl, then the wife of General Alfred Jodl, recounted more than 25 years later that she had been working at the Lützow Hospital when Freisler’s body was brought in, and that a worker commented, “It is God’s verdict.” According to Mrs. Jodl, “Not one person said a word in reply.

Freisler’s death saved one Fabian von Schlabrendorff, a July 20th Plot member who was on trial that day and was facing a certain death sentence and almost immediate death by hanging on a piano wire (a cruel method of executing traitors designed by Adolf Hitler himself). Ironically, after the war von Schlabrendorff became… a judge of the Constitutional Court of the Federal Republic of Germany.

Volksgerichtshof – the “People’s Court”

Roland_FreislerVolksgerichtshof was created by the new treason law enacted on April 24th, 1934 which replaced all relevant paragraphs (80-93 of the Weimar criminal code) gave this special court it jurisdiction over all crimes of treason. Which, interestingly enough, included black market activities.

The idea behind this law was to create a powerful deterrent to any opposition activities; so it is no surprise that it made just about all opposition activities punishable by death.

Which was way too “excessive force” as by that time just about all opposition was demoralized, detained in concentration camps (and even mostly transformed into loyal supporters of the regime) and thus all but destroyed.

Hence, long prison sentences (not even a life sentence) would have been sufficient for achieving Hitler’s fundamental objective – annihilation of all opposition to the Nazis.

But Hitler was a quintessential soldier who (a) hated traitors (and he viewed all his political opponents as traitors) with all his mind, heart and soul; and (b) believed that he was already fighting a war – and in the war the only punishment for traitors was death.

Hence the death penalty applied to preparation for treason (any work with any anti-Nazi organization can be viewed as such); the establishment or re-establishment of such organizations (or organizations deemed as such by the Gestapo, prosecution and the court); acts of sabotage; anti-Nazi radio broadcasts; printing, circulation or smuggling into Germany of forbidden literature and not only the betrayal of “state secrets”, but also the attempt to discover such secrets.

Preparation for high treason included cases in which the defendant had received anti-Nazi leaflets from someone and had neglected to turn them over to the Gestapo; likewise when the accused had a discussion with a person opposed to Nazism without making an immediate denunciation to the political police.

“Decree to Protect the Government of the National Socialist Revolution from Treacherous Attacks” and the “Law against insidious Attacks upon the State and Party and for the Protection of the Party Uniform” made virtually all public and private criticism of the Nazi government a criminal offense punishable by imprisonment up to five years.

The official wording of this law, made illegal only the untrue statements, but its interpretation by the special courts did not allow the defendant to prove that his statement was true.

It is estimated that about 80% of all political trials in 1934-38 (i.e. pre-war) were based on this law. It was especially applied against Catholic and Protestant priests, who had spoken publicly against the government’s interference in church matters. Less prominent victims of the same law were old men and women who were grumbling against the Nazi government.

It is commonly believed that the Volksgerichtshof was created in response to his dissatisfaction at the outcome of the Reichstag Fire Trial (“the Leipzig Trial”), in which all but one of the defendants (Marinus van der Lubbe) were acquitted.

Van der Lubbe was found guilty and sentenced to death (which made no sense at all as no one was even injured, let alone died in the Reichstag fire). Two weeks after the verdict, on January 10th, 1934 (three days before his 25th birthday) he was guillotined in a Leipzig prison yard.

In 1981, a West German court posthumously overturned Van der Lubbe’s 1933 conviction and found him not guilty by reason of insanity (the only verdict from the multitude on the Reichstag fire that made sense).

Ernst Togler (the last chairman of the KPD faction in the German Reichstag) and three Bulgarian Communists (Georgi Dimitrov, Blagoi Popov, and Vasil Tanev) were found not guilty by lack of evidence by then still independent from the Nazis German Supreme Court (Reichsgericht).

The Bulgarians were immediately deported to the Soviet Union and Togler was (predictably) immediately detained in a concentration camp by the Gestapo under “protective custody” order and after the year of incarceration… ended up working for the Nazis. Becoming just one of the vivid examples of the efficiency of Nazi “re-education” system.

For five years he worked for the Gestapo and in 1940 he was transferred to the Nazi Propaganda Ministry and began working on anti-Bolshevik propaganda at the behest of Joseph Goebbels. Later that year, Torgler was brought back to Gestapo to work in Czechoslovakia on the staff of no other than the “butcher of Prague” Reinhard Heydrich (!).

There is, however, a major problem with this theory. Although Adolf Hitler did publicly voice (and very loudly so) his dissatisfaction with the outcome of the Leipzig Trial, he was smart enough to understand that it was the only possible outcome of the trial.

For a very simple reason – he read the official report prepared by Rudolf Diels – the director of Prussian political police. Report that proved beyond the reasonable doubt that Marinus van der Lubbe was the lone arsonist.

However, after the Reichstag Fire Decree publicly put the blame for the fire on German and foreign Communists the Nazis had no other choice but to bring the case before a still-independent Reichsgericht (even being well-aware of the inevitable verdict). Which proves beyond the reasonable doubt that Nazis had nothing to do with this arson.

Reichstag Fire Trial was one-of-a-kind and was of interest to the Nazis purely for propaganda purposes. The objective of the Volksgerichtshof was to suppress political opposition – a fundamentally different objective.

Hence, it has nothing to do with the outcome of the Leipzig Trial and would have been established anyway – fire or no fire.

The Volksgerichtshof was to have three chambers, two for the prosecution of high treason, one for the prosecution of “regular” treason. Two members of each chamber were to be professional jurists, and three members were to be “lay judges,” selected from party and military organizations (idea that surprisingly had a precedent in the Weimar judicial system).

All judges were appointed for tenures of five years. Defense attorneys would have to get special permission to appear before the court, and they would be subject to disqualification even after the beginning of a trial.

Although the Nazis intended to make the Volksgerichtshof a reliable instrument for political trials, their use of professional jurists on the court indicated that they were hesitant to violate the tradition of an independent judiciary.

For a very simple reason – the needed the support of the judicial community as replacing all (or even the majority) of judges with hastily trained National-Socialists was impossible for purely technical reasons. Thus the Nazis had no choice but to develop a partnership of sorts with the community of professional jurists.

Partnership that required respect for the feeling of traditionally conservative (but by no means national-socialist) jurists. Although designated a “special court,” the Volksgerichtshof was an entirely constitutional organization (technically, the Weimar Constitution was still very much in force in Nazi Germany).

Weimar constitution forbade the creation of courts for the trial of individually determined cases, but not special courts for trial of general categories of cases. The Reichstag had already set up such a court in 1922, when in response to the murder of Walther Rathenau it established the special-purpose Staatsgerichtshof and gave it jurisdiction over political assassinations.

Six lay judges had sat on the nine-member Staatsgerichtshof. As for the Volksgericht’s right to dis-qualify defense attorneys, lawyers representing members of the Communist party had to seek special approval to appear before the Reichsgericht during the Weimar period, and this practice was continued in the Federal Republic of Germany after the Second World War.

The official commentary on the law of April 24, 1934 saw the Volksgerichtshof in very restricted terms, as a means of making law enforcement (i.e. fighting political crimes) more efficient. Commentaries tended more often to compare the court with the army, the favored institution of conservatives, than to link it with the Nazi movement: the court would fight internal enemies just as the army fought external ones.

Evidently his views were shared by some of the Volksgericht’s members. The court’s first published decisions were so cautious that they came under attack from official Nazi quarters.

Initially, the People’s Court was supposed to be a temporary institution; however, in April of 1936 a decision was made to give it a permanent status. The official register of all crimes was transferred to the Volksgerichtshof; the court received an independent prosecution staff and an independent press agency; the ambitious Otto Georg Thierack (the future Reich Minister of Justice) was appointed president of the court.

Contrary to a popular misconception, Volksgericht’s members were not radical Nazis deliberately undermining traditional law. They were fairly conventional conservative jurists following general legal trends.

Which after the outbreak of the Second World War (and especially after the invasion of the Soviet Union in June of 1941) made all hell break lose. First, jurisdiction of the court was extended to cover crime committed by foreign nationals.

Then the prosecution was allowed to appeal just about all not guilty verdicts and verdicts that were too lenient (in prosecutor’s opinion). These appeals in 70% cases resulted in death sentences.

And, finally, the Volksgerichtshof de-facto adopted essentially Stalinist principle “it is better to convict ten innocents…”. For example, in 1944 one Leopold Felsen Felsen was accused by his wife of listening to foreign broadcasts. It was brought to the attention of the Special Court that she had been trying to get rid of him since 1939.

Felsen’s daughter, after testifying against him, admitted in court that she had committed perjury because her mother had threatened to kick her out of the house. The Volksgerichtshof nevertheless condemned Felsen to death.

Hence it is no surprise at all that in 1942 the People’s Court stopped publishing its decisions thus becoming essentially a Secret People’s Court. But the worst was yet to come.

After the Stalingrad disaster in early 1943, the Volksgerichtshof began to prosecute cases of defeatism in increasing numbers. The immediate result of this was a colossal case overload was the inevitable degeneration of procedure (which transformed the institution into essentially a kangaroo court); the long-term result was that the judges of the court, for the first time since its establishment, found themselves literally prosecuting their neighbors.

Although both the Volksgerichtshof and the Special Courts were exempt from the Hitler’s decision to draft 28,000 men from the legal system into the Wehrmacht and the court had been expanded considerably since the beginning of the war, it could not keep pace with this kind of overload. The enormous increase in the number of cases required the corresponding increase in the number of judges.

Which was a very serious problem as all judges were conservative jurists who were very uncomfortable (to put it mildly) to preside over kangaroo courts and to pass draconian sentences on ordinary folks found guilty of minor offenses that were no threat to the Nazi system or war effort.

In 1943, only 123 (3.7%) out of 3,338 defendants tried in the Volksgerichtshof, were found not guilty. Interestingly enough, the numbers for the current Russian criminal court system are very similar these days. 1,662 (just under 50%) were sentenced to death, the remaining got (usually long) prison sentences.

Thus overloading began to lead to the conviction of people innocent even in the Volksgericht’s understanding of the law. Judges increasingly found themselves condemning upper-class gentlemen (and ladies) to death for making statements that they might have made themselves. Which for them was deeply uncomfortable, to put it mildly.

One Volksgerichtshof  member complained in June 1943:

“Death sentences of the Volksgericht were much too rushed. Often nothing was said about the personal relationships of the defendant; . . . more seriously, the consideration of evidence-especially with respect to the nature of the act, even when disputed by the – defendant-is often exhausted in short statements made before the investigator or police, or even in the mere opinions and prejudices of the court. A critical appraisal of such decisions is hardly possible. A recommendation of execution presupposes complete confidence in the court. But such confidence is shattered when . . . facts later become known that the defendant’s statements-only recently declared false-appear very probable.”

Not surprisingly, open resentment (and even resistance) made itself manifest and spread through the legal system which predictably made it very difficult for the Nazis to find reliable judges (or any judges for that matter).

In short, by the end of 1944, the system of special courts (including the People’s Court) essentially collapsed in a legal sense and became almost indistinguishable from the Stalinist system which consisted of “kangaroo courts” since almost the very beginning.