Courts of the Third Reich

Ingo Müller’s book Furchtbare Juristen, which first appeared in 1987 and was published in English in 1991 as Hitler’s Justice: The Courts of the Third Reich, was the standard reference work for generations of postwar critical law students. Müller described the misdeeds of the German legal system between 1933 and 1945 as well as the continuities in the Federal Republic’s legal institutions after World War II. The book broke ground in countering the self-congratulatory West German narrative of an unbroken democratic success story after 1945.

When Ströbele was born in 1939, the Nazi machinery of war and destruction had already been running for six years and would continue for six more. But the devoted Nazis and men in uniform were not the only pillars of the system of repression. Lawyers were also complicit, as the “Judges’ Trial” held in Nuremberg concluded in December 1947:

The charge, in brief, is that of conscious participation in a nationwide government-organized system of cruelty and injustice, in violation of the laws of war and of humanity and perpetrated in the name of law and by the authority of the Ministry of Justice, and through the instrumentality of the courts. The dagger of the assassin was concealed beneath the robe of the jurist.

Kurt Tucholsky, one of the great German writers of the Weimar era, once penned a short and striking description of the German Bar Association: “When we look at you, we are gripped with the deepest horror.”

Nevertheless, even the Weimar Republic had seen a number of militant liberal and socialist defense lawyers. Democratic, socialist, and Marxist legal scholars fought for the democratic Weimar Constitution and the rights of workers and the workers’ movement. Yet this tradition was brutally extinguished by the Nazis, with Jews and socialists either murdered or driven into exile.

Today no one in Germany would seriously question whether the legal profession in the early years of postwar West Germany was infested with opportunists and Nazi fellow travelers, at best, or assassins in robes, at worst. But this crucial political insight had a profound impact on Ströbele’s life.

He often told of how his defense lawyers’ cooperative for law students was led by the presiding judge of the jury court in Berlin-Moabit, Dr Oske. In all of West German history, only one judge from the Nazis’ so-called People’s Court was ever tried by federal German courts for his murderous deeds in robes: Horst Rehse. Of the Nazi legal system’s 35,000 death sentences, he had signed 231 of them.

Rehse was first sentenced to five years in a widely publicized trial before the Berlin regional court but was later pardoned in an appellate trial in front of the Berlin jury court, in December 1968, by none other than Dr Oske himself. Ströbele would recount how greatly this angered him and other students, how they drafted a written commentary and distributed copies of it they made with a hand-crank duplicating machine. The historian Jörg Friedrich would later document the affair in his book Freispruch für die Nazi-Justiz.

This was the era of the student movement, which rediscovered Weimar-era critical theorists like Otto Kirchheimer and Karl Korsch and sought to draw on them in both theory and praxis. Ströbele participated in discussions at Berlin’s Republican Club, organized by prominent left-wing intellectuals like Johannes Agnoli and Hans Magnus Enzensberger, debating whether leftists ought to become lawyers or if doing so ultimately served the state’s repressive apparatus. Ströbele and others resisted the call to get industrial jobs as revolutionaries and politicize the proletariat. Instead, they found their calling in fighting the repression that the state threw against the student movement. Together with Horst Mahler and Klaus Eschen, Ströbele founded the Socialist Lawyers’ Collective — an almost unthinkable affront to the West German Bar Association and the ex-Nazis and Cold Warriors in the legal system and the bureaucracy.

At that time, the official bar association in West Germany primarily saw itself as an “organ of the administration of justice.” Not only judges and state prosecutors but also lawyers themselves were obliged to uphold the state’s legal order. Ströbele and his colleagues, by contrast, entered the legal profession viewing themselves as advocates for their clients. “The subject of the trial is the accused, and the lawyer is tasked with using all available means to make his voice heard and to help enforce his rights. Everything was to be subordinated to what the clients wanted,” Ströbele explained. He refused to let himself be compromised by the state and stood on the side of his clients, whose interests he represented resolutely.

Defending the Red Army Faction

This stance would later come to have severe personal consequences for him. Together with others, he came to the legal defense of members of the far-left militant group the Red Army Faction (RAF). They did so in such a dedicated manner that several of them were excluded from the defense shortly before the legendary trial of Andreas Baader, Ulrike Ensslin, and others began in Stuttgart’s Stammheim Prison.

This harassment of the driven and enthusiastic defense lawyers was primarily the responsibility of staff in the Office of the Federal Prosecutor in Karlsruhe, later described by Friedrich Kiessling and Christoph Safferling in their study Staatschutz im Kalten Krieg: “They remained friends of the state that, even twenty-five years after the founding of the Bonn Republic, mistrusted the open society.”

Ströbele’s fate proved to be even worse. He was arrested in summer 1975 and spent five weeks in pretrial detention. While there, he conducted consultations through the window and during strolls through the courtyard — after all, as a practicing defense lawyer, he had plenty of clients in prison. At the conclusion of a lengthy trial, he was ultimately sentenced to ten months on parole for “supporting a criminal association.” The courts alleged he had participated in the construction of an illegal RAF communication network.

While conservatives held this accusation against him for the rest of his life, Ströbele always replied that he had merely facilitated the exchange of notes between prisoners and the outside world. His goal had been to make the years of pretrial detention more bearable and soften the impact of solitary confinement. His understanding of collective defense also included collective preparation, which in turn meant exchange and the organization of political discussions. This activity did not stop his client, RAF leader Andreas Baader, from deriding Ströbele and the other lawyers as the last believers in the rule of law.

Indeed, Ströbele did believe that legal processes had value. He was an “incorruptible, endlessly hardworking, courageous and simultaneously intelligent defense lawyer,” as his former trainee Johannes Eisenberg wrote in his obituary, who “never, which is practically unheard of among defense lawyers, put on airs of any kind.”

Unrelenting and Principled

For my generation, Ströbele and his colleagues were the trailblazers who paved the way for a new culture in the German legal system. A fair trail depends on antagonistic interests being played out and the perspective of the accused being professionally presented. This later became a matter of course for us, and continues to be today — but taking such a stance still required a great deal of courage well into the 1980s.

Ströbele took this uncompromising ethos into the German parliament, where he stood out in a number of investigation committees for his careful studying of the files, his accurate preparation, and his questioning techniques. His and his then colleague Otto Schily’s performances in the committee investigating illegal donations to the Christian Democratic Union in the early 1990s were legendary. Beginning in 2006, he became active in the committee investigating the German Federal Intelligence Service’s participation in the Iraq War and its complicity in the CIA’s extraordinary rendition and torture of terrorism suspects.

He was also active around the next intelligence services scandal: the total failure of the German police and intelligence services to solve the series of murders committed by the far-right terrorists of the National Socialist Underground (NSU) and the botched investigation of it in the NSU investigation committee, beginning in 2012, and later in the scandal provoked by whistleblower Edward Snowden’s revelations of the extent of the National Security Agency’s global espionage operations.

His sense for the moment could also be seen in October 2013, when he became the first politician to visit Snowden in Moscow, taking a picture with him and supporting him resolutely from then on.

As friendly and open to conversation as he was, Ströbele could also come across as a bit distant. Yet this impression was leading. During an interview with him about the RAF trials in 2016, he candidly told me about his first political actions in the early 1960s, when he helped friends and relatives escape from East Germany together with other law students at the Free University of Berlin. He told me that, in his early years, he rarely went to lectures, instead immersing himself in the student nightlife until he eventually had enough of the carefree lifestyle.

He was naturally also interested in art and culture, and wanted to read books, he said. But reading newspaper clippings, legal briefs, and piles and piles of files had taken up all of his time. What would I do in his position, as new files on the NSU come to light or Snowden’s revelations prompt further investigation? These were the issues he had dealt with for years, the things he knew inside and out. When someone else made false claims about them, he could hardly keep his mouth shut.

Our society would be a better place if we had more people like Hans-Christian Ströbele: incorruptible, persistent, and dedicated to truth and justice.