20 minute read
T Social Context of the Law Helmuth von Moltke and the Rule of Law
SOCIAL CONTEXT OF THE LAW: HELMUTH VON MOLTKE AND THE RULE OF LAW
By Master Patrick O’Connor. Master O’Connor traces the disintegration of the ‘rule of law’ and of the legal profession in Nazi Germany after January 1933. One of the very few lawyers to engage in ethical resistance was Count Helmuth von Moltke, an Inner Templar. He paid with his life.
Helmuth in Vienna. Inset: General von Moltke
EARLY LIFE
Count Helmuth James von Moltke was born in 1907, to a distinguished German military family. His great-uncle was Chief of the German General Staff until 1914. His great granduncle, von Moltke the Elder, was the Field Marshal who modernised the Prussian army. He led it to victory against Austria and France before the unification of Germany in 1871. With Bismarck’s support, he acquired Kreisau, an estate in Silesia, later of historic significance. Since 1891, the Moltke Bridge has spanned the River Spree in central Berlin.
And yet, on 23 January 1945, Helmuth was executed in Plötzensee Prison by the Nazi regime. He had been convicted of ‘treason’ by the so-called ‘People’s Court’ in Berlin. We will explore how the ‘rule of law’ collapsed under the Third Reich after 1933, and how Helmuth came to this fate. His ethical confrontation with the Nazi dictatorship may have enduring significance for us.
Helmuth fully qualified as a lawyer in 1934. He refused a judicial career, because of the Nazi regime’s requirement to join their party. He pursued a very early commitment to human rights, entering private practice, from a small office in Berlin, specialising in private international law. He assisted those trying to leave Germany, including dissidents and Jews. The young Helmuth was noted for his boundless energy and seriousness of purpose. His choices were informed by several early progressive influences. His maternal grandfather, a member of The Inner Temple, had been a notably liberal politician and Chief Justice of South Africa, and his grandmother an early feminist. The family was active in various relief programmes for workers in Silesia during the economic crises of the late 1920s. He mixed in creative circles in Berlin and Vienna, including Arnold Schoenberg and Bertolt Brecht. He was a very charismatic young man, as he appears in 1928 in Vienna. In Austria, he met future wife, Freya Deichmann, also to be a law student.
Helmuth’s studies in international law led him to London and Oxford. He visited the League of Nations in Geneva and the Court of International Justice in The Hague. Whenever he could, and especially to the complacent English upper classes, he warned against appeasement of the Nazi regime.
Helmuth von Molkte and Family, 1932
He was called to the Bar by The Inner Temple in 1938, having studied the final exam curriculum for two months. He underwent (a short) pupillage in the chambers of John Foster, an international law expert. Helmuth spent time with Lionel Curtis, the founder of Chatham House, and with several American diplomats and journalists. These relationships must have deeply affected him. During the war, he described a dream of being in the Temple and sitting down to work. At great risk, he maintained these contacts.
OVER THE PRECIPICE
Helmuth’s choice of practice was courageous at that time. The independent legal profession, and German law itself, had disintegrated after January 1933.
Weimar Germany, until then, had a highly developed legal system with a criminal and civil code, dating from 1871 and 1900. The Weimar Constitution of 1919 included all our current familiar human rights protections, and more. Article 102 guaranteed the independence of the judiciary. The Bench was, in broad terms, nationalist – conservative, and complacent about the violent rise of the Nazi movement but applied familiar legal principles. There were two vigorous independent associations of judges. There was an independent Bar Association, founded in 1871, with 15,000 members.
With terrifying speed, all of this was dismantled. On 31 January 1933, Hitler was appointed Chancellor. On 27 February 1933, the Reichstag parliament building was burned down. The next day, the so-called ‘Reichstag fire decree’ (“…for the protection of the people and the state…”) was issued, annulling constitutional rights and declaring a state of emergency.
On 10 March 1933, a Jewish lawyer, Dr Michael Siegel, was beaten up and paraded through the streets of Munich, stripped of his shoes and trousers. He had reported to the police an attack upon a Jewish businessman’s shop. He had to wear this placard saying, “I will never again complain to the police.”
Michael Siegel in Munich
On 21 March 1933, ‘special courts’ were established to dispense swift justice at lowest cost, with very limited defence rights and no appeals. On 24 March 1933, the ‘Enabling Act’ authorised government by decree, overriding and ending constitutional government. The Confederation of German Judges promptly declared “its full trust” in the regime.
From early April, Jewish judges and prosecutors were expelled, together with any socialists. They were also refused admission to the Bar or disbarred. Here is one such letter dated 9 June 1933, from the President of the Regional Court, disbarring a lawyer named Finkelstein, in Tilsit, East Prussia. It simply said, “You are erased” (“Geloscht worden”) from the approved list for the local and regional courts. One-third of all legal scholars were removed from the universities on these grounds. On 21 April 1933, a Federation of National Socialist jurists was formed and the existing Bar Association forcibly dissolved. All independent legal publications were suppressed.
All this happened within four months.
After June 1933, every graduate Bar candidate had to undergo six weeks training at a ‘community’ camp in Jüterbog near Berlin, “to stimulate their National Socialist sentiment”. One image from this camp was exhibited at the Nuremberg trials. The teachers are merrily showing off a gallows over the parade ground, and there is the Prussian Minister of Justice, Hans Kerrl, without legal qualification. In fact, the scene was deadly serious. A symbol of German statute law was suspended from the gallows. Roland Freisler, the Nazi legal theorist, had declared that national socialist judges “do not need the crutches of statutes”. This was a Nazi legal education, symbolically executing statute law.
Jewish lawyer disbarred Tilsit, 1933
Gallows Freisler in court
Helmuth himself had to attend this camp. He and a few friends subverted the anti-Semitic lessons with satirical questions. When required to read Nazi literature, they simply played Beethoven very loudly. Ultimately, candidates for Call had to sign on their application form that they had not even been tutored by a Jew.
By July 1933, all other political parties had been dissolved and banned, and a ‘Hereditary Health Court’ was established to enforce compulsory sterilisation for so-called ‘defectives’.
At a national convention of the Bar Federation in October 1933, in Leipzig, 10,000 lawyers took an oath of loyalty to the Führer. The Nazi Party newspaper denounced named lawyers, Jews, journalists and politicians as “Traitors of the People”, which has some resonance today.
Leipzig rally
In 1934, by decree, the Gestapo were authorised to take anyone into ‘protective custody’ for political reasons and, by 1935, were given legal immunity for any of their actions. On 24 April 1934, People’s Courts were established, to try treason and sabotage cases. Three of the five judges were military men. There were no appeals.
On 4 June 1937, Ministry of Justice lawyers agreed with the Gestapo upon a standard form of ‘club’, to be used 25 times on the buttocks during interrogations, with a doctor present.
By 1938, all Jewish lawyers had been removed from practice. At this time, the Nazi Bar Federation disbarred members for consulting a Jewish doctor, and for arguing political cases too strongly. Two notaries were prosecuted variously for not saluting properly in court and in the streets, for voting the wrong way in a plebiscite, and for buying postcards for 10 pfennigs from a Jewish man.
Between 1933 and 1939, principles basic to any recognisable legal system were reversed. Cases were not to be decided by ‘logical reasoning’, but by the ‘feel of the case’. From 1935, article 2 of the Penal Code permitted criminal convictions by analogy and retrospectively, where any act “deserves punishment according to the fundamental idea of a penal law or the sound sentiment of the people… [or] according to the law whose underlying spirit can be most readily applied to the act”. During their sentences, prisoners could be transferred to the Gestapo or SS, for further detention or execution. Any acquittals or ‘lenient’ sentences could be reviewed. Hitler personally often intervened to insist upon the death penalty, once for an offence of stealing eggs. Overall, it is estimated that 60–80,000 people were sentenced to death by the courts under the Third Reich. They were instruments of terror. By comparison, in fascist Italy, the courts passed 29 death sentences.
All of these measures required the close involvement of countless legally qualified civil servants, lawyers and judges for drafting and implementation. In 1938, of all the local Gestapo chiefs, 87 per cent had studied law and 50 per cent had doctorates in law. Hans Frank, executed at Nuremberg for his crimes when governing occupied Poland, was a Doctor of Law, and had been President of the Academy of German Law.
Goebbels frankly explained the permitted role of the law and of the courts in a speech in 1942: “While making his decisions, the judge is to proceed less from the law than from the basic idea that the offender is to be eliminated from the community” and, “The idea that the Judge must be convinced of the Defendant’s guilt must be discredited completely.” Judge Max Reichert said of the courts, “What the army is at our borders, our decisions must be within them.” Carl Schmitt, the brilliant Nazi legal and political philosopher, wrote, “The law is there to protect the state from the individual.” It was a ‘through the looking glass’ world.
There were about 1,900 laws governing the treatment of Jewish people in Germany and the occupied territories. When dictating a telegram, use of the phrase ‘A as in Abraham’ was prohibited. Victor Klemperer recorded in his diaries that he was not allowed to possess a typewriter and could not buy flowers or shaving cream, since Jews were supposed to grow beards. The laws rendering German Jewish people ‘stateless’ in 1941–42 were necessary for the seizure of all their property after their ‘departure’, but also rendered them defenceless against annihilation, as Hannah Arendt and Professor Tim Snyder have pointed out.
Very rarely did lawyers resist. A brave Bavarian prosecutor, Josef Hartinger, in 1933 presented an indictment against named SS officers for murders in Dachau concentration camp. This was quickly suppressed, and he was moved to a provincial post. In 1940, one judge, Dr Lothar Kreysigg, issued a criminal summons and an injunction against the head of the ongoing T4 euthanasia programme. He impertinently relied upon the lack of any legal authority for these killings. The proceedings were quietly dropped, and he retired on medical grounds. Significantly, both these men kept their freedom and survived the war.
In this environment, Helmuth and Freya made several fateful choices as the war loomed: to continue living in Germany, when they could easily have left; to bring two children into the world, Helmuth Caspar and Konrad; and to continue to try to use the law to protect the weak against a murderous dictatorship.
IN THE WAR
With the outbreak of war in 1939, Helmuth was conscripted. He joined the foreign intelligence branch of the German army, the Abwehr, as an international law expert. This would not seem to be fertile territory for his expertise and commitment, but the upper echelons of the Abwehr were riddled with disloyalty and outright Nazi opposition.
With a rank equivalent to major, Helmuth was party to the clearest intelligence about military atrocities in the occupied territories of the east. He despaired at his limited influence. In his letters to Freya in later 1941, he expressed his torment: “May I know this and yet sit in my heated flat and have tea? Don’t I thereby become guilty too?… How can anyone know
these things and walk around free?” He described some reported incidents as “surely the height of bestiality and depravity”. His letters were tormented and sometimes angry. He described a meeting with the army generals as “the murderers’ pit of loyal vassals of the Führer…disgusting toadies…”.
He certainly fought to do what he could. Regulations and orders were sent in draft to his department for comment. He sometimes had overnight to respond and organise counterlobbying. “Today,” he reported with some pride in 1939, “I won my case. But it was like winning a victory over a hydra. I chopped off one of the monster’s heads, and 10 new ones have grown in its place.” At this time, priests were being imprisoned for saying prayers for the Jews.
One memorandum from Helmuth pleaded for the rights of captured prisoners in the Eastern Territories. This became a significant exhibit at the ‘High Command’ Nuremberg war crimes trial. In the margins, Field Marshal Keitel had written that these rules were “quaint” and “obsolete” and reflected “outmoded notions of chivalric warfare”. Keitel was sentenced to death.
Helmuth travelled widely for his work. In June 1943, in the Netherlands, he extracted promises from the military to avert the execution of civilian hostages, which, if kept, saved over 1000 lives. On visits to Turkey, he provided to his contacts a detailed review of the parlous state of Germany, dated 9 July 1943, which survives. In October 1943, he and others warned Danish Jews of plans to transport them to concentration camps. Out of 6000 hunted, most escaped by boat to Sweden, and only 200 were caught.
Helmuth was permitted to continue running his small legal practice close to the War Ministry building in central Berlin. In 1940, before the USA entered the war, he met George Kennan, an American diplomat, later a renowned political scientist. Kennan described him as “the greatest person morally, and the largest and most enlightened in his concepts…” that he had met on either side in the war.
THE KREISAU CIRCLE
By 1940, Helmuth was secretly writing about a postwar constitution for a reconstructed Germany. Using his connections, Helmuth cautiously explored the personal views of select individuals. When trust was gained, from the summer of 1940, he introduced like-minded people to wider discussions in secure conditions. Small gatherings occurred mainly in Berlin and Munich. This crystallised into a dissident discussion group, later called the Kreisau Circle, after the von Moltke family seat. Detailed papers planned a postwar decentralised German federation, covering education, agriculture and economics, and the right to resist oppression. Three plenary meetings, each of perhaps 12–14 people, were convened at Kreisau between May 1942 and June 1943.
It was a diverse group of conservatives, liberals, socialists, the religious and non- religious, including a banker, Jesuit priests and trade unionists. They tended to foresee a prominent role for the Christian churches in the moral renewal of Germany, but founded upon complete tolerance for race, national and religious difference. In a draft dated 14 June 1943, Helmuth envisioned a special international war crimes tribunal to be convened at the conclusion of the war.
The Kreisau Circle is historically recognised as having born real credibility for post-war Germany. The group put out peace feelers, on the basis of a surrender conditional upon the end of the Nazi regime, before Germany was completely destroyed. The Allies would not contemplate this.
The risks taken by Helmuth and all participants were formidable. In early 1943, the ‘White Rose’ group of students, including Sophie Scholl, were tried before Judge Freisler in the ‘People’s Court’ and executed by guillotine for distributing disloyal pamphlets in Munich. The BBC was able to broadcast these pamphlets, because Helmuth took them to Sweden and ensured they reached the British authorities.
DETENTION AND TRIAL
Helmuth was arrested by the Gestapo on 19 January 1944 and detained ‘under investigation’ at Ravensbrück concentration camp. He had apparently warned a friend of impending arrest. At least he had an impeccable alibi for the months leading up to the unsuccessful ‘Stauffenberg’ bomb attempt upon Hitler’s life on 20 July 1944.
However, eight of those plotters had been involved in the Kreisau Circle, and there were personal connections to Helmuth. The subsequent frenzy of 7000 arrests, with mass executions, broke the secrecy of the group. On 28 September 1944, Helmuth was transferred to Tegel prison, Berlin, for deeper investigation and ultimately for trial. By extraordinary chance, the prison chaplain at Tegel was Harald Poelchau. He had attended meetings of the Kreisau Circle and was a religious socialist.
With his courageous help, for the next four months, the last of Helmuth’s life, a near daily exchange of 150 secret and frank letters took place with his wife, Freya. She kept them hidden from the Gestapo in the estate beehives at Kreisau. They survived the war. They are almost unbearably moving to read. They struggled between the faintest hope of clemency and preparing emotionally and spiritually for execution.
In the last letters to his two sons, then aged five and three, Helmuth explained the values behind his sacrifice: “Throughout an entire life, even at school, I have fought against…arrogance and lack of respect for others, [and] intolerance…excessive nationalism, [and] racial persecution…”
Freya was allowed five face-to-face visits in this time too. She had to travel 250 miles each way from Kreisau most weekends, leaving her children and the running of the estate, as Germany was crumbling. As the trial approached, the Russian front was moving much closer. She ran extraordinary risks.
Prison conditions were harsh, with permanent cell lighting, and Helmuth was shackled most of the day. Apart from this direct record of their immense courage, the letters do record Helmuth’s experience of the trial. It took place before Judge Roland Freisler, who even then was notorious. Though a fanatic, Freisler was also a very clever jurist. He became President of the People’s Courts in 1942. His aggressive humiliation of the accused shamed even the Nazi leadership, for whom this was an “unnecessary excess’’. According to his own figures for 1943, 50 per cent of the accused or 1662 people were sentenced to death by the six ‘Senates’ of the People’s Court. In Freisler’s First Senate, this reached 58 per cent. Very few indeed were acquitted.
Harald Poelchau
In October 1944, Helmut was served with his arrest warrant, charging him with undermining the war effort, preparation for high treason, and aiding and abetting the enemy. The conduct alleged in the indictment was largely true, and indeed the Gestapo never discovered the more ‘subversive’ written Kreisau papers.
During 1943, with defeat increasingly likely, the Kreisau Group simply conducted an honest debate about the postwar future. This was after all the job of military intelligence, the Abwehr. Even the prosecutor made clear that Helmuth had rejected any association with the Stauffenberg plot.
His trial before the so-called ‘People’s Court’ on 9 January and 10 January 1945 was held before a trusted audience. It was very dramatic. Here is Helmuth arguing his case and arguing for his life. He put his legal training to good use. He defiantly faced Judge Freisler, justifying his conduct. There was no escape from Freisler’s interpretation of the law. He held, “Anyone who objects to acts of violence, but prepares for the eventuality that another [the enemy] removes the government by force, thereby engages in preparation for high treason.” After the inevitable death sentence, Helmuth was proud that he had forced the judge only to convict him for his ideas, and not for any actions. “We’re being hanged for having thought together,” he wrote.
Helmuth maintained his wry sense of humour throughout, describing his trial as a “C minus” death sentence case. Helmuth’s family name gave Freya various privileged faceto-face meetings with high officials. The more civilised these conversations about clemency were, the more surreal; but they were ultimately fruitless. Helmuth was executed on 23 January 1945 and went to his fate with great serenity. Less than two weeks later, on 3 February 1945, an air raid on Berlin killed Judge Freisler, during the court day. Even colleagues recorded that no one mourned his passing.
Freya and her sons survived the war. Ultimately, the family settled in Vermont. The precious letters, 1600 of them from 1929–1945, were secured and kept with them. Freya immediately started to educate the world about the duty to resist oppression and discrimination of all kinds. She frequently wrote and gave lectures in Germany and Poland. She survived until 2010, when 98 years old. Understandably, the more intimate, later letters from prison were only recently published.
Freya von Moltke in 1949
AFTERMATH
Helmuth and his fellow dissidents hoped for the moral regeneration of post-war Germany. They required at least a clean break with the Nazi regime and legal accountability for war crimes.
There was anything but a ‘clean break’. The West German legal and political systems remained deeply compromised by former Nazis. Their hopes for accountability to the law, in terms of numbers prosecuted, convictions and sentences, were met only to a very limited extent. At the so-called ‘Justice’ trial, in 1947, ten lawyers, judges and civil servants were variously convicted of war crimes and crimes against humanity, by their abuse of the ‘law’. In principle therefore, such lawyers can be criminally liable for the direct consequences of their work.
Rather more happily, the Polish and German prime ministers held a reconciliation service at Kreisau estate on 12 November 1989, only three days after the fall of the Berlin Wall. Kreisau was instinctively recognised as a symbolic location. A ‘New Kreisau’ arose, with the strong support of the von Moltke family. Now, about 5,000 young people a year attend to learn about international law and current threats to democracy. A proud place in history is secure. In 2007, at a memorial service for the centenary of Helmuth’s birth, in Freya’s presence, Chancellor Angela Merkel described Helmuth as “a symbol of European courage”.
Mock trial
Finally, we must acknowledge that Helmuth was in an unusually privileged position, by contrast with the many millions of dehumanised Nazi victims. His significance lies in his choice to risk his life, because he could not put aside his values. Tragically, he paid the ultimate price. The Inner Temple is honoured to be connected across three generations with the von Moltke family.
We are all left with a chilling and timely reminder of how fragile the ‘rule of law’ can be. Let us ensure that we never let the example of Helmuth and Freya fade from our memories.
Patrick O’Connor QC Doughty Street Chambers
©P O’C QC 2021 Letters to Freya: 1939–1945: A Witness Against Hitler, edited and translated by Beate Ruhm von Oppen (Collins Harvill, 1991) Last Letters: The Prison Correspondence, 1944–1945: edited by Helmuth Caspar von Moltke, Dorothea von Moltke and Johannes von Moltke (NYRB, 2019)
For the full video recording of this talk: innertemple.org.uk/vonmoltke
