The Roma Struggle for Compensation in Post-War Germany

Julia von dem Knesebeck

• Publisher: University Of Hertfordshire Press
• Year: 2011
• ISBN:
  9781907396472
• Edition: 1
• Topic: History
• Subtopic: Holocaust History
• Index: History

Thirty years passed before it was accepted—in West Germany and elsewhere—that the Roma (Gypsies) of Germany had been Holocaust victims. Drawing upon a substantial body of previously unseen sources, this record examines the history of the Roma struggle for recognition as racially persecuted victims of National Socialism in postwar Germany. Looking at West Germany in the period between the end of the war and the beginning of the Roma civil rights movement in the early 1980s, this authoritative analysis demonstrates how pejorative attitudes continued unchallenged and how compensation was eventually achieved.

Chapter 1: The Nature of Persecution

The central problem for Roma in post-war Germany was that, unlike other victim groups, they were not regarded a priori as victims of National Socialist persecution - except in the immediate post-war period, when their emaciated bodies marked them as former concentration camp inmates and they generally received care similar to other victims. One of the main reasons for this lack of recognition was the absence of a clear break in attitudes towards, and perceptions of, Roma in the aftermath of the Third Reich. The Allies’ post-war compensation regulations classified those who had been racially, politically or religiously persecuted by the National Socialists as victims eligible for compensation, a definition incorporated into the Federal Compensation Law. The general population in West Germany, however, remained ignorant of the genocidal policies towards the Roma. In the decades immediately following the war, the racial nature of the Roma’s persecution was not acknowledged by the Allies, German politicians and historians, or by the German public as a whole.

It was common in the legal and official sector to diminish the atrocity of the National Socialist treatment of Roma by describing it as a mere continuation of Weimar policies. This lack of recognition of Roma as victims of racial persecution can be seen most blatantly in the various local, state and federal court decisions concerning Roma compensation claims. Most courts categorised National Socialist persecution as police measures, which led to the Federal Supreme Court’s ruling in 1956, and again in 1959, that the persecution of the Roma had not been wholly racial. The courts failed to examine the persecution of Roma within the National Socialist framework of social and racial policies. Instead, the regional and state courts examined each measure taken by the National Socialists individually, scrutinising whether it had been racially motivated. Problematically, most courts took the reasons given by the National Socialists at face value, without questioning their validity. One such measure examined by the courts was the resettlement of German and Austrian ‘Gypsies’ to Poland from May 1940 onwards, as decreed by Himmler on 27 April 1940.¹ The Reich Criminal Police Office (Reichskriminalpolizeiamt - RKPA), in its 1939/1940 yearbook, justified the deportation of 2,500 ‘Gypsies’ from the border territories to occupied Poland as a response to a request by the Central Command of the German Army (Oberkommando der Wehrmacht - OKW) on 31 January 1940. The OKW had demanded the removal of all ‘Gypsies’ (even those in possession of German passports) from the border territory on the grounds that their criminal and inferior character made them untrustworthy and, given the war background, potential spies.² In 1956 the Federal Supreme Court decided that these deportations had been a military act which had, even though unlawful, not been racially motivated.³ In its verdict it declared that:

The resettlement of Gypsies from the border zone and surrounding territory to the Generalgouvernement [occupied Poland] that occurred in April 1940 was not an act of National Socialist oppression based on race or ethnicity as defined by paragraph 1 of the Federal Compensation Law (BEG).⁴

What the Supreme Court failed to take into account was that the head of the Gestapo and Reichsführer SS, Heinrich Himmler, and the head of the Central Office of the Security Police (Reichssicherheitshauptamt - RSHA), Reinhard Heydrich, had been taking concrete steps towards the deportation of Roma months before the Central Command of the German Army demand, and thus might have merely used this request as a retrospective justification. In a meeting on 21 September 1939 at the RSHA, which Arthur Nebe attended as the head of the Reich Criminal Police Office (Reichskriminalpolizeiamt - RKPA), Heydrich ordered the removal of 30,000 ‘Gypsies’, along with Jews, from the Reich to Poland.⁵ Himmler had prepared this imminent deportation with the Compulsory Settlement Order on 17 October 1939 (the Festsetzungserlaß), which restricted ‘Gypsies’ to their place of residence.⁶

Similarly, the courts regarded the confinement of Roma in concentration camps such as Dachau and Sachsenhausen, which increased steeply after the Reich Criminal Police Office edict on 1 June 1938 initiating the Operation Reich Workshy (Aktion Arbeitsscheu Reich) as a justifiable policing measure.⁷ Even if a Rom, confined as a result of this edict, had been working and sedentary, the Federal Supreme Court argued that one could not presume that his confinement had been racially motivated, and that he was still likely to have been confined because he had been ‘asocial’.⁸ These court cases did not discuss the legality of this action but merely decided that it had not been racially motivated, and thus debarred those affected by this edict from the circle of victims entitled to compensation. It is difficult to check the motivations behind these decisions, but a conscious effort to minimise the range of eligible victims could be one explanation. The decisions might also be a reflection of how restricted the view of Hitler’s racial war was at the time.

In general, most courts regarded the persecution of Roma before Himmler’s directive of December 1942 - which demanded that all ‘Gypsies’ were to be sent to Auschwitz - as having been part of the policing efforts. They argued that Roma had been regarded as ‘asocial’ and thus police measures dealing with them had been justified.⁹ The judges rarely questioned whether Roma had indeed been ‘asocial’, or whether ascribing such qualities indiscriminately to entire groups was a racial categorisation in itself. They thereby indirectly accepted (or at least did not question) the National Socialists’ racial line of argument. A 1959 Federal Supreme Court decision expressed this very clearly: ‘It is held that it was not until Himmler’s so-called Auschwitz Edict of 16.12.1942 / 29.1.1943 that the policy of the National Socialists was directed at the annihilation of the Gypsies’.¹⁰ The decision further stated that:

Aside from the fact that Jews were the only ones specifically named in the NSDAP party manifesto, the comparison with measures taken against the Jews cannot be drawn, because Jews do not possess the characteristics that had turned the Gypsy living a ‘Gypsy lifestyle’ into a national plague long before the advent of National Socialism.¹¹

The above makes three things clear: first, the courts did not question the line of reasoning behind the National Socialist persecution of the Roma, nor did they attempt to find out whether the so-called ‘policing’ efforts might have been racially motivated. Secondly, they did not question whether the characteristics ascribed to Roma (such as hereditary criminality, ‘asociality’ or feeble-mindedness) were racially pejorative. And thirdly, it was not questioned whether the methods employed by the National Socialists in restraining (or detaining) people alleged to possess these characteristics were justified or lawful. These points reflect a continuity in attitude and thought with regard to Roma, which had existed long before Hitler’s seizure of power. In particular, the sweeping statement that ‘Gypsies’ had always been a ‘plague’ supports the theory that the judges who rejected Roma compensation appeals in the 1950s had been part of the machinery which had persecuted ‘Gypsies’ during the Third Reich and had not changed their attitudes.

The continuity of certain viewpoints was linked to the continuity of certain personnel post-1945; this becomes very clear if one looks at how the Allies failed to create a new judicial caste after the war. After liberation, the Allies had withdrawn jurisdiction from all special courts (such as the People’s Court, the Special Courts and the SS Police Courts). Initially, there had been a possible plan to suspend German courts for ten years, replacing them with some sort of ‘colonial’ court system in order to train a new generation of judges.¹² However, as no Allied agreement could be reached, the District Courts (Landesgerichte) and Higher District Courts (Oberlandesgerichte) returned to operation by June 1945, and in the autumn the first presiding judges were appointed to the Courts of Appeal. The Control Commission Law No. Four, on 30 November 1945, dismissed all those judges who had been more than merely nominal NSDAP members, though even this measure proved to be untenable. In North Rhine-Westphalia, for instance, ninety-three percent of court personnel had been either members of the NSDAP or of one of its subsidiary groupings.¹³ The idea to reinstate all pre-1933 judges was, due to most judges’ age, not a workable option either, which led to the British decision to treat all members of the judicial profession who had joined the NSDAP after 1937 as nominal members. When this still failed to lead to a sufficient number of German jurists to run the judicial system, the British Military Government employed a ‘piggy-back-method’, which meant that for every ‘clean’ judge, one with a bad record could be installed. Even this restriction was dropped in June 1946, from which date any de-nazified judicial professionals could be employed. As denazification was beginning to slacken at this stage, most judges were categorised as either ‘followers’ or ‘exonerated’, so that soon former Special Court judges and SA members replaced Weimar judges. This is exemplified by the fact that, by 1948, about thirty percent of the presiding judges and eighty to ninety percent of the assisting judges at the Higher District Courts in the British Zone were former NSDAP members. A similar trend could be found in the other Allied Zones.¹⁴

The question that needs to be asked at this point is whether the persecution of the ‘Gypsies’ during the Third Reich had been racially motivated and whether this group’s persecution should have been categorised similarly to the persecution of Jews, i.e. as racially motivated, and whether the Roma should thus have categorically qualified for compensation from the outset. The persecution of ‘Gypsies’ and its place in the National Socialist racial war is a comparatively recent field of study. Amongst the main contributors to this field - Gilad Margalit, Guenter Lewy, Michael Zimmermann and Henry Friedlander - opinions vary with regard to the nature of this persecution and its wider significance.¹⁵ This difference of opinion is in part linked to the issue of intention.

Some historians, including Lewy, claim that the premise for classifying the persecution of a group as genocide (i.e. the destruction of a racial group) is the intention and explicit plan for the extermination of this specific group. Lewy argues that because an a priori plan for the murder of the Roma by the National Socialists cannot be proven, this murder does not classify as genocide.¹⁶ In contrast, whilst Zimmermann acknowledges that the extent of the persecution of the Roma varied greatly depending on the geographic area (with more Roma being killed in the Eastern occupied countries than in occupied Western Europe, excluding Germany, Austria, Bohemia and Moravia), he argues that the mass executions in Serbia by the police, the army and the Task Forces (Einsatzgruppen), the murder of the ...