On the defense of old Nazis, the leadership of the FRG and the tribunal against Erich Honecker.
Frank Schumann, junge
Welt, 23/7/2022
Translated by John Catalinotto
You will be 100 years old on July 30. Congratulations on this rare anniversary!
Please don’t congratulate me before it happens.
What has always fascinated me about you is your humor - detached, self-deprecating, ambiguous wit.
Conditions in the world are sad enough. You don’t change them by lamenting them or reacting depressively. Or, as Marx says, by putting one’s face into the prescribed creases. No, that was never my thing. One must try to stand above things, otherwise one sinks with one’s nose in every muck.
But this is not from Marx, seems to me to be from Luxemburg.
When she is right, she is right.
I see at present only noses in the muck.
There I will not contradict you.
Friedrich Wolff, born in Berlin-Neukölln in 1922, son of a Jewish doctor and a Protestant mother, joined the German Communist Party (KPD) in 1945. After studying law at the Humboldt University from 1946 to 1949, “judge by order of the court,” from April 1951 trainee in the Justice Department of the Berlin Magistrate’s Office, lawyer since 1953 and chairman of the Berlin Bar Association from 1954 to 1970 and from 1984 to 1988 and 1990. Defense attorney in various political trials, including against Nazi and war criminals, demonstrators on June 17, 1953, and against Erich Honecker and other members of the Politburo. Wolff authored several books published by Edition Ost in Berlin. The most recent was published in 2021, together with Egon Krenz: „Komm mir nicht mit Rechtsstaat. Gespräch zwischen einem fast hundertjährigen Juristen und einem langjährigen DDR-Politiker“ [“Don't talk to me about rule of law. Conversation Between an Almost Centennial Lawyer and a Longtime GDR Politician].”
I don’t know. Well, I can remember phases when I was very emotional.
When, for example?
In the spring of 1960, when I defended Theodor Oberländer, the Federal Minister for Displaced Persons. The Supreme Court of the German Democratic Republic had indicted him for his involvement in war crimes.
As a first lieutenant, Oberländer had been involved in
negotiations with the Ukrainian nationalists under Stepan Bandera on behalf of
the High Command of the Wehrmacht in 1941. He was in the “Nightingale
Battalion” ...
…consisting of Ukrainian nationalists who had become
prisoners of war, and which was under the control of the fascist secret
service.
Oberländer was the liaison officer for the “Abwehr [military intelligence service] .” The unit entered Lviv even before the Wehrmacht and, together with Ukrainian collaborators, massacred “Jewish Bolsheviks.” The exact number of victims could never be determined, but it was in the thousands. So the charge was generally: “for murder.” And I was assigned to the accused “as a public defender.”
So the socialist was supposed to defend a Nazi?!
Even for a suspected war criminal, the presumption of innocence applies first. Every defendant must be treated fairly in court, even if he himself did not act legally. I know that this is sometimes difficult to understand, especially when the facts are conclusive.
Did the Nazi federal minister appear at the court hearing in Berlin?
No, the trial was held in absentia. Together with my Erfurt colleague Gerhard Rinck, I had tried to contact our client beforehand. But our letter came back from Bonn after it had been opened and resealed there. The envelope bore the handwritten note: “Acceptance subsequently refused. Caretaker has no power of attorney for Federal Minister for Displaced Persons, Refugees and War-Affected Persons.”
You said earlier that you had been emotional. Because of the prominence of the client? Because of the international attention?
Well, I was never afraid of big shots. It was the trial as such. Never before had a West German former Nazi, especially one with government responsibility, been indicted by a GDR court for his war crimes. The trial was not only aimed at the specific person, but at the political leadership of the Federal Republic of Germany as a whole. The trial had great symbolic significance.
In the West, people still speak of a “show trial” today.
Of course it was a show trial. The GDR thus proved the continuity of the Nazi dictatorship in the West German state, the ally of the USA and its anti-communist bulwark against the East. So the scope of defense was limited.
Nevertheless, we defense lawyers declared that the Supreme Court had no jurisdiction. First, the acts had not been committed on our territory; second, the criminal law of the GDR had not applied to Oberländer when he committed the acts. And thirdly, Oberländer was protected by the immunity of the German Bundestag.
The application was rejected. On April 29, 1960, Oberländer was sentenced to life in prison for the shooting of several thousand Jews and Poles in Lemberg. This did not even take into account the murderous acts he later committed with the German-Caucasian “Sonderverband Bergmann” in the Soviet Union.
Oberländer probably did not spend a day in jail.
No, but he had to resign six days later,although he remained politically active. In 1981, for example, he was one of the co-signers of a “Heidelberg Manifesto” that spoke out against the “infiltration of the German people” and the “alienation” of the German language and culture.
Let me guess: Oberländer was rehabilitated after 1990?
Yes, he was. In April 1990, fellow lawyer Wolfgang Vogel let me know that 85-year-old Prof. Dr. Dr. Theodor Oberländer had asked him to instruct me as his defense counsel at the time to apply for the dismissal of the Supreme Court’s verdict. Oberländer was rehabilitated by the Berlin Regional Court on November 24, 1993.
Without examining the accusations of the prosecution, the verdict was annulled on technical grounds “because the main hearing was unlawfully conducted in the absence of the person concerned.”
In 1993, when Oberländer was rehabilitated, the historian Götz Aly called him a “mastermind of extermination.”
Which he most certainly was.
Two years later, you defended another Nazi: Hans Maria Globke. He had not only commented on the so-called Nuremberg Race Laws, but had also formulated anti-Semitic laws himself - for example, that Jewish women had “Sara” and men “Israel” entered in their papers.
Globke was not just a pen-pusher, but also significantly involved in the deportation of about 20,000 Jews from Greece to the gas chambers of Auschwitz ...
... and since 1953 he was Adenauer’s left and right hand in Bonn, the “gray eminence” responsible for personnel policy, for the work of the cabinet, for the establishment and control of BND and Constitutional Protection [political police organizations].
Not to be forgotten: He also pulled the strings in the Christian Democratic Union (CDU). It was not for this, however, but because of his incriminated Nazi past that the GDR put him in the dock.
The GDR’s attorney general charged Globke with “acting in concert to commit crimes against humanity and war crimes in Berlin and other places from November 1932 until the crushing of fascist tyranny in 1945.” Globke was, you’re right, the classic pen pusher in the Nazi empire. And now his desk was in the Federal Chancellery.
But weren’t there the same problems with Globke as in the Oberländer trial?
The GDR had learned its lesson. The indictment and the opening decision were based on Article 6 of the London Statute for the International Military Tribunal in conjunction with Article 5(1) of the GDR Constitution. That paragraph read: “The generally recognized rules of international law bind the state authority and every citizen.”
Globke fit the category “every citizen,” and international law applied equally to the two German states. The GDR expressly submitted to it in its constitution. One should see this calmly also in connection with the mendacious statement of the “unjust state GDR.”
State Secretary Globke received a life sentence in prison on July 23, 1963. A quarter of a year later he resigned as head of the Federal Chancellery, was awarded the Grand Cross of the Order of Merit of the Federal Republic of Germany and wanted to move to Switzerland as a pensioner.
In the 1950s, his spouse had purchased a property on Lake Geneva in the canton of Vaud. However, after Globke’s intention there became known, the cantonal parliament declared that it would not grant the former FRG minister a residence permit. This showed very clearly how Globke was viewed abroad - and how right the GDR was in putting such pillars of the West German state on trial.
This was not propaganda, as is still claimed today, but a principled political confrontation with the fascist dictatorship and its protagonists. In other words, coming to terms with the past. This was not something that was only invented after 1990.
Only in relation to the GDR.
I first believed that this was a word created by the West Germans when they wanted to get at our past and our biographies. No. In fact, when I looked through my documents from the Oberländer trial, I repeatedly read this term “coming to terms with the past” on my sheets from 1960.
The GDR was clearly a pioneer in both the public and the legal discussion of fascism, of the perpetrators and the victims. The first Auschwitz trials in the West took place in Frankfurt am Main in 1963.
At that time, there had already been discussions in the FRG for years about whether Nazi and war crimes should not be considered time-barred. In 1965, the Bundestag discussed the “final stroke.” Even after the UN had determined in a resolution in 1968 that war crimes and crimes against humanity were not subject to a statute of limitations, discussions in the Federal Republic continued to stall.
It was not until 1979 that the Bundestag decided - after 30 years of debate! -decided to lift the statute of limitations for murder crimes committed during the Nazi era. By 255 votes to 222!
And that is why today there are show trials, for example, against 100-year-olds who stood guard in extermination camps almost 80 years ago.
I think that there is a serious difference between our trials and these trials today. At that time, we wanted to draw the public’s attention to certain facts and, in doing so, we also made a political and moral judgment, which is not usually the task of the judiciary.
So these were show trials in the sense of enlightenment and social ostracism. They were a political tool in the GDR’s anti-fascist struggle against Nazis who were actively involved in the reorganization of a part of Germany.
We rightly called this the restoration of reactionary structures and power relations, which was made visible with trials against Oberländer and Globke. Today’s trials - as important as they are for the victims’ survivors - are an attempt to make up for what the justice system of the old FRG lacked for decades.
Rigorous consistency is demonstrated in the prosecution of Nazi crimes. And on the other hand, the majority of the proceedings in the East are always accompanied by an unspoken reproach: Anti-fascism in the GDR has not come that far if these criminals went scot-free at that time.
In plain language, this means that the GDR would have covered up for them ... 30 years after the Globke trial, you were active as a defense lawyer in another show trial - and that trial is rightly called that. Even the current medical findings of the defendant were in the newspaper ...
You mean the trial against Erich Honecker? I had already taken over the mandate in December 1989. Despite being expelled from the SED, he was my comrade. Was there a greater challenge than defending the one who was turned overnight from the first man in the state to the biggest criminal in the state? By the same “comrades” who had previously followed his lead?
Not like that, I said. Not like that! Yes, I too would have voted for Honecker’s resignation if I had belonged to the Central Committee or the Politburo. But as a lawyer, I made a sharp distinction between political and criminal responsibility.
Honecker had been arrested at the Charité on Jan. 29, 1990, after surgery, but a judge at the Municipal District Court in Berlin Mitte rejected the prosecutor general’s request. The chief prosecutor’s appeal was also rejected. The defendant’s state of health prohibited detention. Later, Moscow and Berlin saw things quite differently, although the cancer had continued to grow.
Yes. Under pressure from the Russians, Honecker had to leave the Chilean embassy at the end of July. He was taken from Tegel airport - broadcast live on television - straight to Moabit Prison, i.e. to the place where he had already served time as an anti-fascist resistance fighter in 1935. I wanted to meet him there on the evening of July 29, 1992, but was not allowed in.
That was on the eve of your 70th birthday.
And Honecker had to celebrate his 80th birthday there on August 25.
All your efforts - as well as those of Nicolas Becker and Wolfgang Ziegler, the other two defense attorneys - came to nothing to spare Honecker this nonsensical and, in view of the accompanying events, disgusting procedure.
Quite right. On November 12, 1992, visibly unimpressed by everything, the judge opened the main trial.
Erich Honecker made a remarkable statement in court on December 3. Many think it was the best speech he ever gave. How big a part did you play in the making of this text?
Zero.
He drafted this statement entirely on his own?
I am unaware of anything else.
“This trial is as political as a trial can be. Whoever denies that is not mistaken, but is lying,” Honecker stated in it. “It is a political spectacle.”
In which he was hundred percent correct. He called the proceedings a farce. “All this is being done democratically, under the rule of law, Christianly, humanely and for the good of the German people. Poor Germany.”
You said earlier - in connection with the Oberländer trial - that the legal principle applies: an act must have been punishable at the place where it was committed at the time it was committed, otherwise it cannot be punished. Honecker acted in accordance with the law in the GDR.
Of course. That is why federal German law was applied retroactively to him and to other defendants from the GDR. One of the principles of the rule of law is the prohibition of retroactivity.
Everyone should generally be able to trust that his or her currently lawful actions will not be interpreted to his or her disadvantage under other political circumstances. This is called legal certainty. Or protection of confidence. The West German judiciary has abrogated this principle. The whole procedure was illegal. And a lawyer should not get angry about that?
But when Nazi criminals were sentenced - without wanting to make an analogy here - this was also ignored.
Besides the international legal principles to which I have already referred - the Nuremberg Military Tribunal and international law - I would remind you of the formula formulated by Professor Gustav Radbruch, who died in 1949, regarding criminal proceedings against Nazi and war criminals: the principle of “no punishment without law” does not apply to acts that are “intolerably unjust.”
Were perhaps the acts of Politburo members or GDR judges “intolerably unjust” in the legal sense? Hardly. This is probably why the Bonn legal philosopher Günther Jakobs called the Honecker trial “a retrospective revolutionary tribunal in the courtroom.”
A tribunal, certainly. But one of counterrevolution! It was characterized by hatred against the class enemy, which was not called that. After all, the West did not and does not acknowledge having an “image of the enemy.” As is well known, only the communists and post-communists have one in their ideological delusion … [said ironically]
After 169 days of pre-trial detention, the district court revoked the arrest warrant and discontinued the proceedings, and Honecker was flown out on January 13, 1993. You never saw your client again.
When Honecker was already on his way to Chile, the public prosecutor’s office demanded that I bring him back. That was the last of all monstrosities. No, we never saw each other again.
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