The Sondergerichte – Special Political Courts

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The fundamental principle of criminal justice system in Western democracies is: “it is far better to let ten guilty individuals to walk free than to convict one innocent”. The fundamental principle of Soviet criminal “justice” system under Stalin was exactly the opposite: “it is far better to convict ten innocent individuals than to let one guilty person walk free”.

For Adolf Hitler and the Nazi neither principle was acceptable. They were already facing almost impossible odds in their Quantensprung project so they could not afford any opposition at all. And thus simply could not allow “ten guilty to walk free”.

On the other hand, they needed to radically increase (more than double) the support of the German population for their ideology, their policies, their Party, their State and their projects – from just under 44% that they received in March 1933 national elections to over 90%. Hence they could not “convict ten innocent individuals” either.

Prevention of the resistance activities was largely taken care of by the Reichstag Fire Decree. It was implemented in practice with Schutzhaft (“protective detention” order) used by Gestapo to detain indefinitely without trials individuals deemed to present a political security theat.

And with Vorbeugungshaft (“preventative detention order”) used by Kripo to prevent regular crimes by detaining indefinitely and without court order habitual and professional criminals, gang members and members of organized crime.

Great care has been taken by both Gestapo and Kripo to make sure that only genuine political opponents of the regime and genuine criminals were sent to concentration camp (i.e. that no innocent person ended up behind the barbed wire).

Hence all denunciations (80% of Gestapo investigations started with one) were thoroughly investigated and German citizens were strongly discouraged by the political police from making false denunciations.

However, there was still a very important question – what to do with political criminals (i.e. resistance activists) after the fact. In other words, after the crime has been committed.

Proving their guilt beyond the reasonable doubt (another fundamental principle of Western – and Weimar – criminal justice system) was not acceptable as it would have inevitably allowed way too many political criminals to walk free while one such case for the Nazis was one too many.

Hence that latter (predictably) set up special purpose political courts (Sondergerichte) that operated under a fundamentally different principle (“more likely than not”) thus severely limiting the rights of defendants – and the chances of a guilty one to walk free. By the end of 1933, there were 26 such courts; by the end of 1942 its number almost tripled to 74.

Both branches of Nazi criminal justice – the one that dealt with regular crime and the one that dealt with political one – had a very different objective from both Western and the Stalinist system.

The former was designed to protect the rights of the accused to the maximum extent possible and to avoid conviction the innocent (not to make sure that “the justice was done” as is commonly and erroneously believed).

The latter had a much more direct and primitive objective – to scare the Soviet citizen into a total submission to the Soviet State and personally to the “Red Emperor” Joseph Stalin.

It other words, to transform them (through fear instilled in their hearts, minds and souls by the Soviet repressive system) into obedient slaves. Which led to a very unexpected result for the Soviet leader and his Bolshevist state – the catastrophic defeat of his invasion army in the summer and fall of 1941 (the most spectacular military disaster in human history).

The objective of the Nazi system was to eliminate all crime – both regular and political. The Western system could not do it as the requirement to prove guilt beyond the reasonable doubt makes it completely impossible to eradicate both the organized crime and political extremism and violence (i.e. terrorism).

The Stalinist system could not do it either as it was designed for arbitrary mass terror, not for careful targeting the criminals and criminal organizations to be eliminated.

Consequently, if the Western nations ever decide to eliminate organized criminal activities such as racketeering, money laundering, human trafficking, illegal drug production and distribution as well as political extremism, violence and terrorism (from Islamic to white supremacist), it will have no other choice but to adopt the system of Nazi special purpose courts (and possibly even preventive custody). Adapting them, obviously, to the realities of the modern world.

The legal basis for the Sondergerichte (Adolf Hitler personally insisted that all anti-resistance activities must be legal) was created by the Reichstag Fire Decree and expanded by the three laws passed specifically for the purpose:

  • Decree to Protect the Government of the National Socialist Revolution from Treacherous Attacks (enacted on March 21st, 1933),
  • Law for the Guarantee of Peace Based on Law (October 13th, 1933)
  • Law against insidious Attacks upon the State and Party and for the Protection of the Party Uniform (December 20th, 1934)

After the beginning of the World War II the rights of the Sondergerichte were predictably expanded.

A special court had three judges, and the defense counsel was appointed by the court. Cases were prepared in exactly the same way as in the “normal” Western system of criminal justice. The whole process is very realistically depicted in the movie that I already mentioned – “The Last Days of Sophie Scholl”.

Gestapo investigated political crimes and if the investigating officer decided there was enough evidence for a conviction (it was not always so – hence lots of cases were dropped), referred the case to a prosecutor.

Who reviewed the case and if he agreed with the Gestapo (which happened usually but not always) sent it (and the defendant) to the Sondergerichte. And this is when the procedure became fundamentally different from both the Western and the Stalinist system.

In the latter both the prosecutor and the criminal court (or what passed for the latter in the Soviet Union) were essentially rubber stamps for the decision made by the officer of the political police (Cheka/GPU/NKVD/MGB/KGB).

No one cared about the truth (and thus about justice) – not the political police, not the prosecution, not the judges, not even the defense council. Contrary to a very popular misconception, neither does anyone in the Western criminal justice system (which often has nothing to do with justice).

Prosecution wants to convict the defendant no matter what as losing cases is bad for prosecutor’s career. Defense wants to make the defendant go free – even when the defense lawyer knows perfectly well that the client is guilty of a horrific murder (i.e. of a rape and murder of a child).

And the judge cares only about “following the law”. Law not justice (it is not always the same thing). Hence, child rapists, horrible murderers, mafia bosses and even serial killers get acquitted “on a technicality” much more often than is commonly believed. And continue committing horrible crimes.

Nazi Sondergerichte were designed (at least in theory) to fix these obvious deficiencies of the Western criminal justice system. In the special court system prosecutor, defense council and judge were supposed to work together to find the truth.

Thus eliminating the fundamental adversarial principle of the Western system and making sure that all three parties involved worked not for or against the defendant (or for the law for that matter).

But for the society that is not interested in the “letter of the law” or even the rights of the defendant. It is interested only in justice being served. In sending the guilty to jail, concentration camp or (in the most severe cases) to the guillotine or the hangman’s noose and in setting the innocent one free.

Unlike the Amtsgerichte (“regular courts”), the Sondergerichte operated according to the “more likely than not” principle. While in cases involving individuals this principle is highly questionable (to put in mildly), in cases involving organized crime activities (street gangs, mafia, etc.) and political crimes (extremism, violence, terrorism, etc.) it is far more efficient in getting the justice served than “proof beyond the reasonable doubt”.

Still, the idea of the judge, prosecution and defense working together (rather against each other) to establish the truth and make sure that the justice is done (instead of the letter of law being followed) is something that the modern society (IMHO) should investigate carefully.

Once the truth (or what passed for the latter in a specific case) was established, the justice was swift. There was no possibility of appeal (not a good idea), and verdicts could be executed at once.

Including the death penalty. Which was not as swift as in the Soviet Union where the condemned could be dead less than half an hour after the verdict, but still swift – the convicted could meet the guillotine in a matter of a few days.

By far the most famous (actually, the only well-known Sondergericht) was the People’s Court (Volksgerichtshof). It was created in April 1934 for dealing with cases of treason or attacks on national or regional government members. Being the “supreme political court” (in a way), Volksgerichtshof took only the most important cases.

 

Not a Myth: July 20th Conspirators Were Genuine Patriots and Heroes

July 20th plot was not a Resistance project – it was a full-fledged military coup (not just a plan, but an actual coup). Obviously, the conspirators were heroes – they risked their lives to achieve their objectives (and most lost their lives as the result).

And this time the conspirators were not traitors, but genuine patriots, because their ultimate objective was exactly what Germany needed at that time – negotiate acceptable terms for an immediate armistice (or at least ceasefire) on both Wester and Easter fronts (or at least on the former).

They believed that in order to achieve this very noble objective, they to assassinate The Führer, overthrow the Nazi government, establish the military junta and immediately start negotiations with the Allied powers.

Unfortunately for them (and for Germany), achieving these objectives was ‘mission impossible’. They could have assassinated Hitler, of course – it was pure luck that he survived the explosion (obviously, he attributed his luck to the support of the almighty Providence).

As for all other objectives, they had a chance of a snowball in Hell. Hitler had an official successor – Reichsmarschall Hermann Göring who would have immediately assumed the position of The Führer and (also immediately) suppressed the coup. Suppressed for a very simple reason – practically no one, military or civilian outside of a small circle of conspirators supported their objectives.

The conspirators made no attempt to isolate (let alone assassinate) him so nothing would have prevented him from becoming the almighty Führer. Not even the very creative Valkyrie operation.

And even if they miraculously managed to seize power in Germany, no Allied power would have even talked to them about anything but an immediate and unconditional surrender. Which was precisely what they did not want (they wanted the Reich to return its 1937 borders).

Consequently, July 20th conspirators were genuine patriots and heroes. Unfortunately, they were ignorant of the most basic facts about the Nazi Germany and the Allies, naïve and thus hopelessly incompetent. So it is no surprise at all that they failed – and failed miserably.

 

Myth: German Resistance Activists Were Genuine Patriots

Most of them were not. They were heroes – no doubt about that – it takes a genuinely heroic courage to risk one’s life (and practically all Resistance members gave their lives) to do what your conscience tells you to do. Especially if it means going against such formidable adversary as the Nazi regime. This heroic courage definitely deserves respect and admiration.

However, it takes more than heroic courage to be a genuine patriot (actually, sometimes it does not take courage at all). Being a genuine patriot of your country means doing what your country needs to so at the moment in question.

In other words, satisfying not the demands of your consciousness (no matter how noble) but the genuine needs of your country at the specific moment.

Did Germany need resistance against the Nazis? Of course, it did. It desperately needed someone to start and organize resistance against crimes against humanity (and later the war crimes) committed by the Nazi regime.

It needed resistance against the persecution of Jews (and later against the Holocaust), homosexuals, Roma and Sinti people. Against mass murder of civilians committed during ‘pacification’ and anti-guerilla warfare; against mass murder of Soviet POWs, against enslaving millions of residents of occupied territories and forcing them to work in German factories and farms. Against plunder of these occupied territories etc.

In other words, Germany desperately needed mass movement to force the Nazi regime to stop behaving like an organized crime syndicate and start behaving like a civilized government and the civilized state.

Consequently, the only genuinely patriotic Resistance movement in Nazi Germany was the campaign against the infamous ‘Aktion T4’ – mass murder through involuntary euthanasia of mentally ill (and some incurably physically ill) Germans in Germany and Austria in 1939-41.

This campaign (led by Catholic and Protestant Churches) managed to put an end to this monstrous crime against humanity. On 24 August 1941, Hitler ordered the indefinite suspension of the T4 killings.

Unfortunately, no other German Resistance activist ever tried to start and organize such a resistance movement and grow it into a political force powerful enough to make Nazi government put an end to war crimes and crimes against humanity.

The group led by Generalmajor Hans Oster, deputy head of the Abwehr develop a very detailed plan of a military coup that was literally hours away from being commenced when the Munich agreement was signed (which averted the outbreak of war between Germany and France & Britain over Czechoslovakia).

Plotters planned to have Adolf Hitler arrested (and possibly assassinated), to overthrow the Nazi government and to establish the military junta to govern Germany.

Which was exactly what Germany did not need, because at that time the Nazi regime (and personally Adolf Hitler) were the only force capable of saving Germany and the whole European civilization from being invaded, conquered, occupied and ultimately destroyed by Stalin and his Bolshevik hordes.

In other words, successful military coup would have resulted in exactly the opposite to what the plotters wanted. Consequently, these plotters, though being completely unaware of that (which does say something about their competence as intelligence professionals), were acting in the interests of a foreign power that was an existential threat to their homeland. Which automatically made them traitors – no doubt about that.

Members of the German section of the Rote Kapelle (‘Red Orchestra’) were traitors as well – plain and simple. They were Soviet spies who before and during World War II supplied the Soviet High Command with vital information that helped the Red Army kill more Germans and to reach its ultimate objective – invade, conquer, occupy and ultimately destroy Germany and the European civilization.

Consequently, Harro Schulze-Boysen (a Luftwaffe staff officer, believe it or not), Arvid Harnack, a prominent lawyer and economist and their associates got what they richly deserved when they were arrested, tried and executed by the Nazi authorities.

Yes, they were heroes (a spy is always a hero), but still traitors. Because both prior to and especially during the existential war with the Soviet Union Germany definitely did not need someone to pass strategic military and economic information to the enemy.

Communist Resistance activists were traitors as well. For a very simple reason – the Communist Party of Germany (KPD) was a member of Comintern – an organization established by Vladimir Lenin (leader of the Bolshevist Russia) with but one objective – conquer the entire world and incorporate all countries into the global Union of Soviet Socialist Republics. Run from Moscow, obviously.

Thus, Communists in Nazi Germany were essentially agents of the external power that represented an existential threat to their Fatherland. No sane and responsible government would tolerate such activities in their homeland. Hence, the Nazis did exactly the right and patriotic thing by ruthlessly suppressing KPD and its activities.

Georg Elser, a carpenter from Württemberg, who on the night of November 7th, 1939 detonated a bomb that was supposed to kill Hitler but missed its target by 13 minutes (!) was a traitor as well.

Also for a very simple reason – by assassinating Adolf Hitler in November 1939, he would have killed the only leader capable of saving Germany (and the whole Europe) from the existential threat of being invaded, conquered and occupied by the Bolshevist Soviet Union.

For the same reason, Wehrmacht officers (Major-General Henning von Treskow and his associates) who planned their own assassination attempts using a bomb as their tool, were also traitors.

Fortunately for Germany and the whole European civilization, Elser succeeded only in killing seven innocent civilians (and subsequent plotters failed even to detonate their devices).

The total death toll, however, was four times higher as outraged SS guards at Buchenwald Concentration Camp killed twenty-one Jews as a reprisal for this assassination attempt. Which made no sense at all, because Elser was not a Jew and no Jew was in any way involved in this attempt on Hitler.

For the reasons still unknown, Nazi authorities decided to spare Elser’s life. Instead of being executed after a brief trial (as was the case with just about every Resistance activist), he was placed (without trial) in ‘special custody’ in Sachsenhausen concentration camp where he spent the next five years in relatively comfortable conditions.

He was executed (again without trial) only on April 9th, 1945 – just four weeks before the end of the war in Europe. Given that his bomb killed seven innocent people, he also got what he richly deserved.

And because he murdered innocent people (and apparently did not care a damn thing about their lives when he planned his assassination attempt), he does not (IMHO) deserve to be called a hero.

The now well-known White Rose group led by Sophie Scholl and her brother were essentially harmless confused kids who had no idea that Germany was fighting an existential war with the Soviet Union on the Eastern front.

Which was not an excuse for mass murders the Nazis committed on a regular basis, but, unfortunately, the group called for the uprising against the Nazi regime (i.e. for the overthrow of the Nazi government), not for putting an end to crimes against humanity.

Their group conducted an anonymous leaflet and graffiti campaign which called for active opposition to the Nazi regime. As it was a non-violent protest and just about no one shared their attitude towards the Nazi regime, they were no threat to the Nazi regime.

Hence, the decision of the Nazi authorities to try them in the notorious Volksgerichtshof (“People’s court”), sentence them to death and execute them almost immediately after the verdict was a very bad decision.

All that the Nazi authorities accomplished, was creating martyrs and giving the anti-Nazi Allied propaganda a powerful tool (thousands of copies of the group’s sixth leaflet, re-titled “The Manifesto of the Students of Munich”, was dropped by Allied planes in July 1943, and became widely known in World War II Germany).

A far better decision would have been to explain to these kids the errors of their ways and to send the boys to the anti-aircraft Luftwaffe units (to protect German women, children and elderly being brutally murdered by the Allied bombers) and girls to the battlefield hospitals – to care for the sick and wounded.

The White Rose had no followers, but had a predecessor – a middle-aged Berlin couple Otto and Elise Hampel who after Elise’s brother was killed in action in France suffered a fundamental nervous breakdown.

Blaming (somewhat incorrectly because it was France who declared war on Germany, not the other way around) the Nazi regime for his death, they began their revenge campaign (revenge, not resistance) against the Nazi regime.

From September 1940 until their arrest in autumn 1942, they hand-wrote over 200 postcards, dropping them into mailboxes and leaving them in stairwells in Berlin, often near Wedding, where they lived.

Their postcards urged people to refuse to cooperate with the Nazis, to refuse military service, and (of course) to overthrow Hitler. Again, practically no one in Berlin at that time shared their negative attitude for the Nazi regime so all but a very small number of postcards were immediately brought to the nearest Gestapo office. Hence, the couple was essentially harmless.

Despite enormous resources at its disposal and the high priority given to the investigation by SS Reichsfuhrer Heinrich Himmler, Gestapo failed to find the creative couple. It was able to arrest them only because Otto Hampel was denounced by his co-worker.

Under normal circumstances, both husband and wife would have been found not guilty by reason of insanity and sent to a mental hospital, probably for the rest of their lives.

But the circumstances in Nazi Germany in late 1942 were anything but normal, so they were tried by the Nazi “People’s Court” and convicted of “subversion of the war effort” and of “preparing for high treason” (I wonder what that meant). They were both decapitated on 8 April 1943 in the Plötzensee Prison in Berlin.