Indirect Perpetrators: The Prosecution of Informers in Germany, 1945-1965 (review)

In the postwar period, informers who furthered Nazi policies by denouncing others for statements or actions inimical to the understood objectives of the Nazi leadership have been considered indirect perpetrators. Using Adelheid L. Rüter and C.F. Rüter's Justiz und NS-Verbrechen (1971) and French and German archival sources, Andrew Szanajda conveys the extreme frustration inherent in prosecuting those who collaborated by denouncing neighbors and acquaintances. Like Michael Burleigh in his The Third Reich (2000), Szanajda interprets the Nazi era as a period of fundamental lawlessness, with the Gestapo figuring as the dominant instrument of terror in the Nazi police state. In the prosecution of informers after the war, two competing approaches to Nazi criminality emerge: Allied standards for war crimes and German law itself. Of the two, German jurisprudence appears to have represented the greatest impediment to justice. In case after case, wartime evidence came up against postwar realities.

In 7,674 cases of suspected denunciation prosecuted between 1945 and 1964, prosecutors returned only 603 convictions. Penalties varied tremendously—from suspended sentences to, in one case, life imprisonment (p. 289). Szanajda opens his discussion with an overview of the challenges jurists faced in postwar Germany. In force from December 1945 to August 1951, the Allied Control Council Law No. 10 allowed for the prosecution of broadly defined war crimes, including crimes against humanity, but it ran contrary to the basic legal principle of nullum crimen sine lege (no law, no crime). Deteriorating cooperation on the Control Council and differing policies in the Allies' respective occupation zones inhibited the development of clear legal guidelines for German prosecutors. Within the American, British, and French occupation zones, prosecutors did not actively pursue informers until 1947.

Competing pressures emanated from several sources. Public outcries for justice directed against informers encouraged local German prosecutors to act. However, they lacked clear guidelines. As a result, local court victories were often overturned on appeal. But these cases could then be re-opened before Allied military courts. German judges and prosecutors thus faced the unpalatable prospect of violating German law in order to satisfy public demands for justice and the Allied push for denazification. German law held informers accountable for their actions, but only when the accusation or denunciation had been proven false. Denazification and war crimes prosecution fell primarily into the jurisdiction of Allied military courts. These courts could have served as models for German courts in the handling of these issues, but the Allies themselves appeared uncertain of just how far to press the issue.

Initiated within the French Occupation Zone, the postwar prosecution of Helene Schwärzel for denouncing Dr. Carl Gördeler, mayor of Leipzig and participant in the July 20, 1944 plot to kill Hitler, served as a model for the prosecution of such cases. Schwärzel was sentenced to fifteen years on November 14, 1946, but a higher court reversed the decision in 1947. There was a second trial, but again a higher court overturned a guilty verdict, this time due to alleged jury tampering. Helene Schwärzel would be found guilty for the last time in 1948; this time the fifteen-year sentence stuck. An exceptional case, Schwärzel had been financially rewarded by the Nazi regime for her efforts and appeared quite devoted to the Nazi cause. In discussing her trial, Szanadja pays little attention to the negative postwar German attitudes towards the July 20, 1944 conspirators. Schwärzel's conviction served to enhance the reputations of the members of the resistance movement, including Gördeler, and to promote justice for other victims of denunciations (pp. 55-60).

Szanajda completes his study with a quick review of West Germany's reluctance to prosecute war criminals after 1949. Although he does not argue as clearly as Norbert Frei does in his Vergangenheitspolitik (1999), Szanajda, too, criticizes the West German government and its judicial system for rejecting Allied norms of prosecution in favor of...