Accountability for Nazi Crimes: Lessons for Democratic Transitions

The fall of a totalitarian or authoritarian regime and its replacement by democracy represents a momentous political shift. Yet, while change in top leadership and political institutions is radical, such transitions are typically accompanied by significant continuity, particularly in lower-level government personnel. Governments require competent civil servants, police officers, judges, etc. And because the supply of those with the relevant skills and experience is limited, they must often rely, at least in part, on individuals who occupied similar positions under the previous regime. It is not hard to imagine that such continuity may have significant political ramifications. The retention in government service of individuals with an authoritarian past may be particularly consequential for efforts to hold accountable perpetrators who committed human rights abuses and other crimes in the name of the authoritarian regime. Can officials who may themselves have been entangled in an authoritarian regime be trusted to vigorously investigate, prosecute, and try the previous regime’s crimes? This question is at the heart of our research on “Tainted Judges and Accountability for Nazi Crimes,” in which we investigate how post-war efforts to prosecute Nazi crimes were shaped by the presence of a substantial number of judges in the West German judiciary who had close ties to the Nazi regime. As we explain below, our findings have broader implications for democratic transitions in the contemporary world.

Denazification and continuity in government personnel

Following the defeat of Nazi Germany, the allies committed to removing individuals with (significant) Nazi ties (such as party members and officials, members of the SS and SA, etc.) from public life. Despite this initial resolve, it soon became apparent that rigorous adherence to denazification would be challenging. The program was highly unpopular among the German public and there were concerns over corruption. Given the rising tensions of the Cold War, pressure grew to integrate West Germany into the Western alliance. And, of course, there was pressing need for individuals with relevant skills in rebuilding the country; the costs of excluding all those tainted by Nazi ties seemed significant. By the late 1940s, denazification effectively ended and a substantial number of individuals with ties to the Nazi regime remained in positions of power and influence in economic and political life. This included the judiciary, where a large proportion of prosecutors and judges had direct ties to the Nazi regime.

In the first decades following WWII, efforts in West Germany to hold Nazi perpetrators to account were half-hearted and often ineffective. Historians have long studied the complex confluence of causes that contributed to this pattern. Our work zeroed in on one factor: Did the presence of judges tainted by association with the Nazis affect the ability to pursue justice for Nazi atrocities? The goal of our effort was to establish through quantitative analysis how systematic the influence of this aspect was and to get a sense of the magnitude of the effect: Did tainted judges have a marginal impact or did their presence substantially affect the likelihood of conviction?

Our approach and findings

To approach this question, we drew on the work of Dutch historians who compiled a full set of verdicts in West German trials for Nazi crimes involving the actual or attempted killing of at least one person. For data reasons, we focus on the period from 1952 to 1964. We coded in which court a trial was held, the crime involved, as well as the verdict. To measure ties between German judges and the Nazi regime, we focused on two features for which we have systematic data for all judges: First, we record whether a judge was appointed by the Nazis as a judge or prosecutor in the Nazi judiciary. The Nazis were careful only to appoint those considered “politically reliable,” so such an appointment indicates that an individual was sufficiently close to the Nazi regime to be chosen. Second, we record whether a judge completed his legal training during the Third Reich. Almost immediately upon taking power, the Nazis radically reformed German law schools. A third of professors were removed and replaced, “undesirable” law students (Jewish students, social democrats) were kicked out, and legal education was injected with a heavy dose of ideological training. As a result of these changes, the decision to go to law school (and to be admitted) is a reasonable indication that an individual had sympathy for, and planned to make their career in, the Nazi state. (In fact, of the 2,541 judges in our sample who completed law school in the Third Reich, fully 1,929 were appointed by the Nazis as judges or prosecutors.) Because West German verdicts do not include the names of the judges who presided over a trial, we cannot link specific judges to particular verdicts. However, we know which judges were assigned to a court in a given year. Thus, we can measure the proportion of judges with Nazi ties among all the judges in a court in each year – a reasonable proxy for the likelihood that a given defendant will be tried by judges with such ties, given the (quasi-)random assignment of cases.

To assess the impact of tainted judges on the outcomes of trials, we employ a series of statistical models that estimate the probability that a defendant is convicted as a function of several characteristics, including — key to our question — the proportion of judges with Nazi ties serving in the court at the time. The results are highly revealing. The presence of tainted judges had a statistically highly significant and substantively large impact on the likelihood that a trial would end in conviction. As illustrated in the two charts below, across our two measures, as we move from a court with a proportion of tainted judges at the 25^th percentile of the distribution to a court at the 75^th percentile, the estimated probability of conviction decreases by roughly 20 percentage points – a reduction of close to 1/3 from the baseline probability of conviction of 60%. This is clear evidence that the decision to retain so many judges with ties to the Nazi regime substantially undermined efforts to hold Nazi perpetrators to account.

Implications for Contemporary Democratic Transitions

Understanding the forces that shaped success and failure in pursuing justice for Nazi atrocities is significant and meaningful on its own terms.  But our findings also have implications for democratic transitions more generally, including in the contemporary world. The urgent need to build a functioning democratic state generates pressure to draw on the skills and expertise of former authoritarian officials and to retain them in government service – a position eloquently defended by scholars of democratic transitions, including Jon Elster. Our results suggest that doing so comes at a potential cost: Where tainted officials occupy positions that afford them some level of discretion and in which their ideological convictions or past entanglements with an authoritarian regime may shape their decisions, they may act in ways that undermine democratic governance, including efforts to come to terms with the authoritarian past. This implies the need for a nuanced, deliberate approach to retention that pays careful attention to the institutional context within which tainted officials work. Retaining judges who have a high degree of independence is likely to be far costlier than the retention of officials who work in a more constrained and monitored environment. In fact, this aspect is the focus of our next paper, which explores the impact of tainted prosecutors and demonstrates that under appropriate institutional frameworks, it is possible to constrain the (pernicious) effect of officials with an authoritarian past.