Germany and Its Gypsies: A Post-Auschwitz Ordeal

5. German Courts, Nazi Perpetrators, and Gypsy Victims

5 German Courts, Nazi Perpetrators, and Gypsy Victims F rom the late 1940s to the mid-1960s, the legal system of the Federal Republic of Germany (FRG) conducted an investigation into issues related to the Nazi persecution of Gypsies, in particular, the appeals for compensation by Gypsy survivors of Nazi persecution. In dealing with these questions, the courts often ruled in favor of the state, relying on a single Nazi document as the legal underpinning for its decisions. Known as the Auschwitz decree (Auschwitz Erlass), this document (which was promulgated by the Reichsführer of the SS and the head of the German police, Heinrich Himmler, on 29 January 1943) ordered the deportation of most of the German Gypsies to the concentration camp at Auschwitz-Birkenau.1 The postwar judicial system cited this decree in overruling the appeals of Gypsies who had been persecuted before January 1943. The document also was cited in dismissing the investigation conducted by the prosecution against the two most prominent “Experts on Gypsy Matters” in the Third Reich, Robert Ritter and his assistant Eva Justin. auschwitz decree and compensation of gypsy victims The compensation laws enacted in Germany after 1945 recognized eligibility only for victims whose persecution derived from political, racial, 123 Germany and Its Gypsies or religious motives. Allegedly, then, Gypsies persecuted before the Auschwitz decree was published were not persecuted for these motives, so the compensation authorities did not recognize them as actual victims of Nazism. In trials conducted from 1950 to 1953, the courts concurred with the opinion of the compensation authorities and maintained that prior to the issuing of the Auschwitz decree the Nazi state did not take racially motivated measures against Gypsies. The racial nature of Himmler ’s decree has never been contested in court sentencing.2 Some of the first commentaries on the Federal Compensation Law (BEG) supported a restrictive (nonracial) interpretation of earlier persecution of Gypsies prior to the Auschwitz decree. Two of the authors of these commentaries, Hans Wilden and Otto Küster, both senior officials in the compensation system of the FRG, had previous experience in this field. Their section about Gypsies in the 1955 commentary to the BEG began thus: “Since the beginning of time, Gypsies have been regarded by Western civilized nations [Kulturvölker] as a state plague [Landplage]. No one can claim that actions taken against them before 1933 constituted racial persecution . Gypsies’ characters (antisocial behavior, crime, the wandering drive) were occasion for combating them.”3 This declaration accepted at face value the Nazi regime’s formal excuse for persecuting Gypsies. Basing their argument on the precedent of maltreatment of German Gypsies before 1933, Wilden and Küster argued that the decision to send those people to concentration and death camps was not racially inspired before 1943. Turning back Gypsy appeals in the 1950s against the authorities’ refusal to recognize them as victims of Nazism, the courts repeatedly concluded that their racial persecution began only with the issuance of the Auschwitz decree.4 The facts show otherwise. Antecedents in German maltreatment of Gypsies notwithstanding, “racial” motives were interwoven with official Nazi policy toward Gypsies as early as 1936, when the commentary to the Nuremberg Laws was published and when racial motives were explicitly expressed by various decrees of the criminal police.5 In the 1950s, the judicial system of the FRG acknowledged that the massive deportation of Gypsy families from Germany to Auschwitz beginning in 1943 was the result of racial motives. Among the German police experts and compensation authorities a more extremist interpretation was widespread: even after 1943, a few experts maintained, the persecution of Gypsies was not based on racial motives.6 The claim that the Nazi racial persecution of Gypsies actually began in 1943 was neither asserted nor mentioned in the 1950 discussions of the compensation authorities in the Federal Republic on the eligibility of Gypsies for compensation. The available evidence suggests that this argument had been raised for the first time between 1948 and 1950, dur124 German Courts, Nazi Perpetrators, and Gypsy Victims ing the prosecution investigation of Ritter. This claim subsequently appeared in a 1951 police newspaper article written by Rudolf Uschold, a Bavarian police expert on Gypsies.7 Uschold had specialized in this field during the Third Reich, and, from 1946 to 1951, he remained active in the area as a member of the information agency concerning Gypsies (Nachrichtenstelle über Zigeuner) in...