In Our Times: an 8/9 May Column
There is but one 'final' frontier of WW2 left: the Nuremberg Military Tribunal and its cultural significance for the post-1945 global order
As has been ‘customary’ in the past two years, I shall write a few lines on the occasion of the end of the Second World War in Europe. Please find the two earlier instalments here:
First, I considered writing about the small far-left ‘Party of Labour’ (orig. Partei der Arbeit) that went to the annual liberation memorial of Mauthausen Concentration Camp waving a Palestinian flag a few days ago, but then I thought that’s simply too stupid. The flag has been seen in earlier years, mostly to commemorate ‘the Arabs and Palestinians killed [there]’, but this year, of course, it conveyed ‘additional significance’.
Then I read fellow Substacker eugyppius’ rather informative piece on 8 May in German memory and the thorny issues of war and peace defeat—and decided to take you down yet another, no less telling, rabbit hole instead.
In the following, we shall discuss a whole set of topics revolving around Germany, Germans, and the facts of 8/9 May 1945—and I invite you, my dear readers, to judge for yourselves how much of this information is known to you and/or available in legacy media ‘reporting’ about the issue.
As always, all translations into English are mine, as are the emphases.
What transpired on 8/9 May 1945?
It is commonly presumed that ‘Germany surrendered’ that day (even someone as erudite as
uses this term, which is—wrong.What did happen on 8/9 May 1945 is the unconditional surrender of the German Wehrmacht in the Allied HQ in Reims (8 May 1945) and a day later in Berlin-Karlshorst (9 May) in the presence of the victorious Red Army. I have explained this in detail in the 2022 column linked above.
While the typical ‘journo’ of the left-wing persuasion in Germany often hyperventilates about the so-called Reichsbürger (trans. imperial citizens)—a fringe group denying the existence of the Federal Republic and the continued persistence of the German Empire, a deed for which these people are shorn, ridiculed, and surveilled by the Verfassungsschutz—the situation is arguably worse with respect to Germany’s juste milieux of our time.
The attention devoted to these Reichsbürger by domestic intelligence, politicians, and legacy media is completely out-of-proportion relative to their significance. While there is a rich and sordid history of secret services perusing right-wing extremists of all kinds—NATO’s once-secret ‘Operation Gladio’ comes to mind—the question is this:
If ‘only’ the German Wehrmacht capitulated, what about the German state?
There exists, apparently, a little known fact that is quite ‘inconvenient’ to this entire bruhaha, which is a story of deceit, connivance, and, of course, fake news and history. It is the topic of today’s column on the occasion of 8/9 May 2024.
You see, what apparently no-one in legacy media wishes to tell their readers in the current ‘anti-right’ political climate—just check out my dedicated postings with the term ‘stupid Watergate’ in the header—is that the question about German statehood in and after 1945 has been settled.
In fact, it has been settled almost two decades ago, as the netherworld of the German Bundestag’s website clearly shows. But I’m getting ahead of myself.
In 2015, Die Linke used its constitutional right of interpellation and sent a ‘small enquiry’ (kleine Anfrage) to the then-ruling government under Angela Merkel. You can find the enquiry here and the government’s response here.
From the Small Enquiry 18/5033, dated 27 May 2015:
Neo-Nazis in Germany, including in particular the so-called Reichsbürger movement, base their territorial revisionism and inciting propaganda against their EU neighbours Poland and the Czechs on the thesis of the alleged continued existence of the German Reich, which is still upheld by the German government today (see Amadeu Antonio Foundation ‘Die “Reichsbürger”: Überzeugungen, Gefahren und Handlungsstrategien’, Berlin 2014).
In the 1990s, the latter led to diplomatic entanglements between the then governments of the Federal Republic of Germany and the Czech Republic (Bundestag Drucksache 13/4439). This is because: ‘In accordance with German international law scholarship, all previous federal governments, including the current government, have always condemned the expulsion of Germans after the end of the war as unlawful and did not regard the decisions of the Potsdam Conference of 2 August 1945 as grounds for the expulsion.’ It is not criticised that the ‘transfer’ was not carried out ‘in an orderly and humane manner’, but rather the issue of resettlement as stipulated in Section XIII [of the Potsdam Agreement] in general.
In 2005, the former President of the Bavarian Parliament, Johann Böhm, demanded that the guarantor powers of the Potsdam Agreement declare the provisions of the treaty a ‘major error’ and categorise the resettlement of Germans from Czechoslovakia as a ‘continuing injustice’ (www.german-foreign-policy.com/de/fulltext/53252).
In 2011, Bavarian Prime Minister Horst Seehofer declared that the Czech Beneš Laws, which regulated the resettlement of the Sudeten Germans in 1945 in accordance with the Potsdam Agreement, were based on ‘legal concepts’ that ‘do not fit into the European order of values’ (www.german-foreign-policy.com/de/fulltext/58087).
This all is, of course, a charade.
The 2005 statement, as much as I personally sympathise with its intent (for the post-war ethnic cleansing of Germans was a criminal act only superficially related to the war in a technical—legal—sense), is absurd and, perhaps more importantly, too late.
How much too late? Well, the underlying so-called Benes Decrees that underwrote the expulsion of Germans from the territory of the present-day Czech Republic were part and parcel of Czechia’s EU accession negotiations.
Heck, there exists a long-ish legal opinion from 2002 on this particular subject matter, which was co-written by a German jurist. It holds, in section 10 (pp. 23-5, references omitted, emphases mine), that
(45) [Czechoslovak] Law No. 115 of 1946 provides: ‘Any act committed between September 30, 1938 and October 28, 1945, the object of which was to aid the struggle for liberty of the Czechs and Slovaks or which represented just reprisals for actions of the occupation forces and their accomplices, is not illegal, even when such acts may otherwise be punishable by law.’ This legislation still has legal effects. It precludes possible criminal investigations, charges, and convictions of people who have acted during the defined period in the way circumscribed by the rule.
46) While it seems easy to understand that actions directed at aiding the struggle for liberty of the Czechs and Slovaks was being exempted from any possible sanction this is less easy to understand for the second category. This second category refers to ‘just reprisals for actions of the occupation forces and their accomplices.’ It is not doubtful that during the compulsory transfer (Vertreibung) of large numbers of Germans and Hungarians [not to forget them] many people lost their lives on the basis of arbitrary actions by guards, militias or violent members of the population. The Law No. 115 has been used to exempt acts from criminal sanctions which violated elementary humanitarian principles as has been recognised in the German-Czech Declaration of 1997. Such a legislation is, applying the standards of Art. 6 TEU, a blatant violation of the guaranty of human rights, the rule of law and the obligation of the State to protect all individuals on its territory against violence.
47) It should of course be added immediately that this legislation was adopted after a long period of harsh occupation during which many civilians had been brutally murdered or injured. Many if not most of the actions by Germans during the occupation were never investigated by prosecutors or courts…
48) As far as it could be established there were no other laws in European states which were under German occupation which resemble the Law of 1946…the formal exclusion from criminal sanctions of acts which represented ‘just reprisals for actions of the occupation forces and their accomplices’ seems to be unique.
49) It is not generally known that Law No. 115 of 8 May 1946 was apparently influenced by a Decree of Hitler of 7 June 1939, which exempted all those from criminal responsibility who had committed crimes in the battle for ‘preservation of the German element in the Sudeten German territories or for the coming home of these territories into the empire before 1st December 1938.’ Czech authors explain that Law No. 115 was in fact drafted after the model of the German Decree of 7 June 1939. They also indicate that Law No. 115 was not applied in practice in cases where only personal motives existed, as for instance for robberies. This was apparently confirmed by decisions of the Supreme Court of Czechoslovakia in 1947 and 1949. It is also stated by at least two authors that the Law would not apply to crimes against humanity. But apparently no charges have been brought.
I could go on, but I suspect you get the point. Law No. 115 is perhaps among the most vicious Hitler-inspired pieces of legislation still on the books. It was a veritable obstacle for Czechia’s EU accession because (ibid., pp. 32-3)
1) The confiscation of property in 1945/46, of people considered to be Germans and Hungarians, does not raise any issue in the context of accession because the conditions for accession in the Treaty on the European Union do not refer to the past…
6) Law No. 115 of 1946 is still in force and prevents criminal proceedings against persons who have taken ‘just reprisals’ for actions during the occupation. Although this has included crime against innocent people during the forced transfer, a repeal of the law would not seem to be mandatory in the context of accession. The reason is that a repeal would violate the expectations people could have over more than 50 years. It is of legal relevance that Germany, the country most directly affected, did not insist on a repeal when the German-Czech Declaration of 1997 was negotiated. It would be appropriate that the Czech Republic confirms that it regrets specific consequences of Law No. 115, as it has done in the German-Czech Declaration of 1997…
8) The Czech accession to the European Union does not require the repeal of the Benes Decrees or other legislation mentioned in that context. But this opinion is based on the understanding that from accession all European Union citizens have equal rights in the territory of the Czech Republic.
Let’s call a spade a spade: Germany, in 1997 and subsequently in the EU accession negotiations with Czechia, has re-affirmed this. The German gov’t could have raised a stink about this—in 2002. The Small Enquiry of 2015 is thus, well, a political charade, and no-one should consider it differently.
On the Continued Existence of the German State Validity of the Nuremberg Trials
Why did I bring it up? Well, in the laundry list of questions, there is no. 7, which is worth quoting in full:
Does the Federal Government intend to provide clarity and publicly reject the thesis of the continued existence of the German Reich as untenable, so that this assertion cannot be instrumentalised by Neo-Nazis and the so-called Reichsbürger Movement for their territorial revisionism towards neighbouring EU countries?
In their reply (Drucksache 18/5178, darted 15 June 2015), the federal gov’t stated the following:
The Federal Government refers to its answer to question 27 of the Small Enquiry by Die Linke parliamentary group in Bundestag, No. 18/4076, dated 20 Feb. 2015.
So, in that document, we read the following:
The Federal Constitutional Court has consistently held that the subject of international law ‘German Reich’ has not ceased to exist and that the Federal Republic of Germany is not its legal successor, but is identical to it as a subject of international law (BVerfGE 36, p. 1, 16; cf. also BVerfGE 77, p. 137, 155). Reference is also made to the Federal Government’s answer to question 2 of the Small Enquiry by the parliamentary group Die Linke in Bundestag publication No. 16/3744, dated 6 Dec. 2006
Now, if we go to that document in question, we read the following:
Question 2: Does the Federal Government recognise the judgments of Nuremberg in their historical and legal sense?
The treatment of the Nuremberg Trials, namely the so-called ‘follow-up trials’ [orig. Folgeprozesse, i.e., the trials after the ‘big’ main trial], was the subject of the ‘Treaty on the Settlement of Questions Arising out of War and Occupation (as amended in accordance with Schedule IV to the Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany signed in Paris on 23 October 1954)’, promulgated in the Federal Law Gazette II 1955, p. 405 et seq.
Article 7 of this ‘Transition Treaty’ [orig. Überleitungsvertrag] contains the principle that all criminal judgements and decisions of the three Western powers in criminal matters should remain ‘legally binding and legally effective in all respects under German law’ [note that this section specifically excludes the main Nuremberg Military Tribunal vs. the ‘main culprits’ due to Soviet involvement].
According to Article 6, however, this did not apply to judgements against war criminals [q.e.d]; with regard to these, however, a Joint Committee was given the task of making recommendations on the execution of sentences for convicted war criminals, but ‘…without calling into question the validity of the judgements…’.
As part of an exchange of notes on the ‘Treaty on the Final Settlement with regard to Germany’ of 12 September 1990 (‘Two plus Four Treaty’), Article 6 of the above-mentioned treaty expired, while Article 7 para. 1 remains in force (Federal Law Gazette II 1990, p. 1386 seq.).
Look at that—isn’t it interesting, to say the least, that the ‘validity of the judgements’ of the Nuremberg Military Tribunal wasn’t to be questioned but specifically exempted in 1954. With the full acquiescence of ‘the three Western Allies’, i.e., the US, the UK, and France. The (main) Nuremberg verdicts, although upheld, were upheld for the time being and permitted to ‘expire’ in 1990.
It gets ‘weirder’ still, for if frequent, if ill-informed, references to ‘Nuremberg’ (whether 1.0 or 2.0) are par for the course, they have no basis in law it would seem, that is, at least since 1990 de iure and since 1954 de facto.
Now, with these ‘asides’ settled, as it happens, we’re ready for the main course.
What About the German State?
According to an archived version of a website of the Bundestag—see here—that actually contains the two above-linked documents from 2015, we read the following:
The Federal Constitutional Court has consistently held that the subject of international law ‘German Reich’ has not ceased to exist and that the Federal Republic of Germany is not its legal successor, but is identical to it as a subject of international law.
Why does legacy media persecute the Reichsbürger, and the Verfassungsschutz prosecutes them, for making a statement that is, in its essence, very similar to both the afore-discussed treaties and the ruling of the German Constitutional Court?
My only ‘guess’ is: it’s a distraction that has little, if any, relation to legal facts.
For further explanations, we turn to the Bundestag’s academic/research branch (orig. Wissenschaftlicher Dienst), which authored an ‘advisory opinion’ on precisely these matters.
Entitled ‘On the Legal Continuation of the “German Reich”’ (orig. Zum rechtlichen Fortbestand des ‘Deutschen Reichs’, No. WD 3-292/07, dated 25 July 2007, we read the following (references omitted, emphases mine):
In its ruling on the Treaty of 21 December 1972 on relations between the Federal Republic of Germany and the German Democratic Republic, the Federal Constitutional Court held the following:
‘The Grundgesetz assumes “that the German Reich survived the collapse of 1945 and did not perish either with the [Wehrmacht’s] capitulation or through the exercise of foreign state authority in Germany by the Allied occupying powers or later”. With the establishment of the Federal Republic of Germany [in 1949], not a new West German state was founded, but “a part of Germany was reorganised…The Federal Republic of Germany is therefore not the “legal successor” of the German Reich, but as a state identical to the state of the “German Reich”, although it is “partially identical” in terms of its geographical extent, so that identity does not claim exclusivity in this respect.’
All of this is clear-cut since 1972. Moreover, the only significant change in this regard is due to the so-called ‘re-unification’, which is more properly labelled the Anschluss of the territories of the former GDR to the Federal Republic in 1990. Thus the Bundestag’s jurists declare:
The BVerfG [Bundesverfassungsgericht, Germany’s Federal Constitutional Court] has not changed this case law since reunification. With the accession to the Federal Republic of Germany on 3 October 1990, the German Democratic Republic ceased to exist within the framework of a so-called state incorporation [orig. Staateninkorporation]. The territory of the Federal Republic expanded to include the territory of the new federal states. The continued existence of the German Reich in the form of the Federal Republic of Germany did not change as a result of the accession.
Hence, the absurdity of Die Linke’s 2015 Small Enquiry—and the current ruminations about the ‘threat from the Right™’—are revealed. The archived website of the Bundestag is quite explicit about this:
Among other things, MPs enquired about the ‘hypothesis of the continued existence of the German Reich’ and asked whether the Federal Government would publicly reject this as untenable ‘so that this assertion cannot be instrumentalised by neo-Nazis and the so-called Reichsbürger for their territorial revisionism towards neighbouring EU countries’.
If, at this point, you are scratching your head in disbelief, welcome to the club.
Serious people have known about these legal facts since at least 1972. Anyone who, in 2024—or 2015, for that matter—associates the ‘hypothesis of the continued existence of the German Reich’ with a certain group of loons and cranks is—just that. And either a very dishonest or supremely ill-informed person.
And, yes, that includes most of legacy media, the current federal gov’t, and, it seems, a good deal of otherwise ‘very educated people’. What a joke.
Bonus Feature: Publisher ‘Beck’ Bis Farewell to Reality
Beck of Munich is one of the most venerable publishers of scholarly materials, esp. with regard to Legal Studies. The below comment comes to us via lawyer and legal scholar Ulrich Vosgerau’s Twitter/X account and was posted on 29 April 2024:
It is unbelievable: Beck Online—and Beck-Verlag is without doubt the most important legal specialist publisher in Germany—writes on the occasion of the Prince Heinrich Rollator Putsch trial [there are now legal proceedings against the Reichsbürger’s self-declared ‘leader’] opening in Stuttgart:
‘In the Reichsbürger scene, the view prevails that the historical German Empire, founded in 1871 with an emperor at its head, still exists today.’ In Die Welt, you also read something similar time and again: the belief that the German Empire still exists is a hallmark of right-wing conspiracy theorists!
The fact that the German Empire—which, according to prevailing opinion, was not founded in 1871, but, because it was an extension of the North German Confederation, through the transformation of the North German Confederation from a confederation of states into a federal state in 1867—continues to exist to this day is not (only) the conviction of the Reichsbürger, but this view corresponds to the almost unanimous opinion in constitutional law and above all in international law; no different is the consistent case law of the Federal Constitutional Court.
The one and only nation state of the German people, which has existed since 1867 (as a ‘delayed nation’ [this is quite inaccurate, and this term refers to Helmuth Plessner’s book, on which see Jo Whaley’s 2020 article]), does not cease to exist because the territory changes or the constitutional situation fundamentally changes; and certainly not because the name of the state is different with a new constitution. (It’s like when a woman gets married: she suddenly has a different surname, but is still the same person.) And: the Wehrmacht capitulated in 1945; states cannot capitulate. Therefore, the Federal Republic of Germany is by no means the ‘legal successor’ to the German Reich (as many people believe), but is identical with it. It may have a different name, but names are just empty words.
The delusion of the ‘Reichsbürger’ consists in the belief that their Reich somehow forms a ‘parallel structure’ to the Federal Republic, that one can even choose where one wants to belong. Of course, that is not possible; there is no alternative or parallel structure to the state of the Grundgesetz. There is only the one and unified nation state of the German people, which has existed since 1867 and has been called the Federal Republic of Germany since 1949.
Bottom Li(n)es
That should do away with most of the chit-chat about the nature of the German state.
The persistence of all the nonsense around it is stunning, and I don’t know why that is the case as the Federal Constitutional Court, the legal opinions, and the replies by successive federal governments are crystal-clear on this issue.
Only through a reckoning with these facts might truth shine through the fog of disinformation. The level of ignorance among the juste milieux is stunning and beyond comprehension.
The main implication of this appears, to me at least, that the main Nuremberg Trials of the ‘war criminals’ in 1946/47 is probably also ‘up for grabs’ in terms of its judicial significance and, perhaps more importantly, also in terms of its cultural significance.
And with it a good deal more, for the evidence presented at the main Nuremberg Trial—with all four victors, i.e., including the USSR—could not be questioned in all later trials. Now, if the Federal Republic considers these ‘later’ Nuremberg trials (that ‘only’ included the ‘three Western powers’) de facto lapsed since 1954/90, the one remaining idol of the post-WW2 order is: the evidence presented by the four victors in the Nuremberg Military Tribunal.
My take it—give it a bit more time, and this evidence will be questioned, too, and I do think that there is a significant chance that it might end up torn apart, including all the ‘narratives’ built upon the (a)morality tales about The Origins of the Second World War, too.
And for starters on that debate, you might wish to read AJP Taylor’s The Origins of the Second World War to get ahead of the curve.