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Nov. 30, 2007
The Nazis perverted the law
Panel of legal experts discusses rights abuse in Nazi Germany.
PAT JOHNSON
The lessons of the Holocaust are ignored at the peril of the contemporary world, warned panellists at a symposium on the fate of lawyers under the Nazi regime. The same perversion of justice that allowed many Nazi atrocities to go unchecked is in play today in Pakistan, remarked several of the speakers.
"The Holocaust was not a lawless barbarism," said Dr. Norbert Westenberger. "It was a lawful barbarism."
Westenberger, the longtime vice-president of Germany's federal bar, was in Vancouver to participate in Lawyers without Rights, a public forum co-sponsored by the Law Society of British Columbia, CBC, the Vancouver Holocaust Education Centre, Friends of Simon Wiesenthal Centre for Holocaust Studies and the Consulate General of Germany.
"In 1933, in Germany, almost half of the practising lawyers were Jewish. In big cities, like Berlin, it was even more," said Westenberger.
"None of them would ever have called themselves Jewish lawyers," he added. "They were German lawyers and they were Jews."
In 1933, well before the Nuremberg Laws were promulgated and before many of the most oppressive Nazi laws were conceived, the legal profession was targeted by the Nazis. All Jewish lawyers and judges were prohibited from the courts. Jewish lawyers were permitted to consult for Jewish clients only. Immediately, 10,000 vacancies opened up in the judiciary and far more, Westenberger said, in the legal ranks. Two years later, the Nuremberg Laws ended Jewish legal practice entirely.
Didn't the lawyers read the writing on the wall and flee?
"Surprisingly, they did not," Westenberger said. Like so many European Jews did until it was too late, the lawyers believed, "It won't last; it will pass."
For lawyers, perhaps more than other professions, he said, fleeing was a difficult option. Not only were middle-aged lawyers unlikely to pick up their careers in a very different jurisdiction but, as Joel Levi, the founder of Lawyers without Rights, pointed out, German scholars of the time were more likely to have studied classical languages than the English that might have afforded them hope for professional success in the free world.
All this, Westenberger reminded the audience, was legal, under the Nazis' carefully planned anti-Semitic legislation.
But Prof. Stephen Toope, the president and vice-chancellor of the University of British Columbia and the former dean of McGill University's faculty of law, questioned the concept of legality.
"It may be more accurate to say it was done through a perversion of law," he said.
The law stands between the citizen and those who would otherwise have the power to oppress them, Toope said. When the law comes down on lawyers, it is usually because the opposition is based on justice.
The German legal profession, like so many others, quickly fell under the ideological spell of Nazism. Some German lawyers may have seen economic advantage in eliminating the Jewish competition while others may have been able to convince themselves they were upholding the law, as it stood under the Nazis.
Reminding the audience of leading Vancouver lawyers, judges and academics that the perversion of justice is neither purely historical nor foreign to our own system, Toope noted that Canada has had many prohibitions that have defied our pretenses to high ideals. Until 1949, Asian and First Nations citizens were prevented from entering law school at UBC and elsewhere. Canadian Jews encountered barriers in the professions during the 1920s and '30s, and those barriers continued in academia into the 1950s.
Toope stressed that unjust treatment of lawyers remains a contemporary threat in places like Syria and Iran. The daily news also reports on an evolving crisis in Pakistan.
"The [Pakistani supreme] court has now been packed and protests by lawyers have been met by batons and tear gas," Toope said. The lesson then, as it is today, he added, is that "when the legal profession is put under threat, society as a whole is threatened, too."
The forces of discrimination and intimidation that cost Jewish lawyers their rights are "still with us, in barely altered form," Toope said.
Duncan McCue, a CBC reporter who moderated the panel, added that Canadian law was used to prevent First Nations access to legal recourse. The Indian Act prohibited the use of band funds for lawyers' expenses and prohibited fund-raising off reserve. These prohibitions remained on the books until 1951, he said.
Leo Adler, director of national affairs for Friends of Simon Wiesenthal Centre for Holocaust Studies, explained some of the fertile ground that permitted the Nazi attack on justice. Social Darwinism was at its peak around the world, with concepts of racial superiority widely accepted, he said. Moreover, even if Jewish lawyers had sought to flee Europe, there were few places to go.
"Nobody wanted the Jews," Adler said. In 1938, in Evian, France, 32 nations and 39 nongovernmental organizations convened to discuss who might take European Jewish refugees. Of all the parties represented at Evian, just two – Costa Rica and the Dominican Republic – agreed to accept some, and then only in exchange for huge sums of foreign currency from the American Jewish community. The Dominican Republic agreed to take 100,000 Jews in exchange for millions of dollars, but only 500 Jews made it to the Caribbean island by the time emigration from Nazi-controlled Europe effectively ended in 1940.
If there was any doubt that North America was complicit in the exclusion of desperate Jewish refugees, the case of the SS St. Louis dispels the happy fantasy. The St. Louis was the vessel on which 936 Jews fled Europe in 1939, travelling to Cuba, but Cuba admitted just 29 of the St. Louis's passengers. The United States and Canada both sent naval ships to ensure that no Jews disembarked on their shores. Stopping in the United Kingdom, 288 passengers were allowed refuge, while the remaining 619 carried on to Antwerp, after which, scholars estimate, hundreds of the passengers died in the Holocaust.
At that point there was no doubt, Adler said, "Anything and everything could be done to the Jews, because nobody cared."
The St. Louis, of course, was a small chapter in the catastrophic story of the Shoah. Of Europe's nine million Jews, six million died in the Holocaust.
"Six million perished," Adler said. "All legally, because it started with the lawyers, by law, to allow this."
Levi, the Israel bar association's 2007 Lawyer of the Year, said the place of Jewish legal professionals was erased with the stroke of a pen. One day, Jews were included among the country's top lawyers, Supreme Court justices and the presidency of the bar association. The next, Levi said, "You could do medical experiments on them because they were not human beings."
In what may be the only silver lining to the horrific story of justice perverted and humanity defiled is that some of those Jews who did escape Germany went on to form the judicial infrastructure of the new state of Israel after 1948, including the first president of the Supreme Court and the first minister of justice.
The Lawyers without Rights exhibit has completed its time in Vancouver and is now on display at the University of Victoria, in the Student Union Building, until Dec. 9.
Pat Johnson is, among other things, director of development and communications for Vancouver Hillel.
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