Despite the legendary discipline of the party, too, serious divisions soon emerged within the exiled leadership, between an ultra-left majority that continued to pour venom on the Social Democrats and the Communist International, which recognized the scale of the defeat the party had suffered and eventually began to urge collaboration with Social Democrats in a ‘popular front’ against fascism. In January 1935 the Communist International openly condemned the party’s former policy as ‘sectarian’ and began to tone down its revolutionary rhetoric. Sensing the way the wind was blowing, a growing minority amongst the German Communists went along with the new Moscow line. They were led by Walter Ulbricht, the former Berlin Communist leader, and Wilhelm Pieck, a long-term Reichstag deputy and companion of Liebknecht and Luxemburg in their final days, before their murder by the Free Corps during the ‘Spartacus uprising’ of 1919. Alongside this ideological reorientation, the centralized structure of the party in Germany, so helpful to the Gestapo, was now dismantled and replaced with a looser organization in which the different parts were kept largely separate. The way finally seemed open to a united and effective working-class resistance against the Nazis.105
But it was all far too late. The local organizers and many of the rank and file of the Communist resistance had spent too long fighting the Social Democrats to abandon their hatred now. When 7,000 workers paraded in Essen in the middle of 1934 to demonstrate at the grave of a Communist who had died in prison, the local Communist leadership made it clear that Social Democrats, ‘against whom the deceased had always fought’, would not be welcome. Moreover, Ulbricht, charged with bringing about a Popular Front of Communists and Social Democrats in Germany from his position of exile in Paris, had a talent for antagonizing people. Some thought that he was being deliberately abrasive so as to put the blame on the Social Democrats for the failure of a policy that he did not really support anyway. It also proved impossible to communicate the new party line to many activists within Germany, given the vigilance over couriers exercised by the Gestapo. The German Social Democrats for their part remained as suspicious of the Popular Front, which really did lead to genuine, if uneasy co-operation in France and Spain, as they had been of the ‘United Front’, a well-known tactic of the Communists to undermine them during the Weimar Republic. The legacy of bitterness sown in 1919-23 proved too powerful for any real co-operation to come about in Germany.106
In any case, by the time the Popular Front policy was in full swing, both Communist and Social Democratic resistance organizations had been severely damaged by the Gestapo. The mass arrests carried out in June and July 1933 obliged the resistance movement to regroup, but the Gestapo was soon on the track of the new organizations and began to arrest their members too. The experience of the Düsseldorf branch of the illegal Communist resistance was probably not untypical. A great industrial centre with a tradition of radicalism, Düsseldorf was a stronghold of the Communist Party, which won 78,000 votes in the Reichstag election of November 1932, 8,000 more than the Nazis and more than twice as many as the Social Democrats. The mass arrests that followed the Reichstag Fire Decree on 28 February 1933 severely damaged the local party, but under the leadership of the 27-year-old Hugo Paul, it regrouped and put out a steady stream of leaflets and propaganda. In June 1933, however, the Gestapo seized the party’s records and arrested Paul himself at the home of the man who printed the leaflets. Brutal interrogation revealed the names of further activists, and over ninety had been arrested by the end of July. The party’s clandestine leadership in Berlin sent a series of replacements for Paul, changing them frequently to avoid discovery, and by the spring of 1934 the local organization had a membership of around 700, producing an internal newsletter in editions of 4-5,000 copies and distributing leaflets by pushing them through letter-boxes at night, or scattering them from the top of high buildings such as the railway station, banks, cinemas and hotels, by means of a device known as a ‘jumping jack’ (Knallfrosch ). The party regarded the distribution of a bitingly sarcastic commentary on the ‘Night of the Long Knives’ as a particular success.
However, the Gestapo was able to turn a clandestine Communist functionary, Wilhelm Gather, into a double agent, and when he reentered the local Communist Party after his release in 1934, arrests soon followed - sixty in the town’s central ward, followed by fifty in the working-class district of Friedrichstadt. Other Communists who were arrested and tortured committed suicide rather than betray their comrades. Yet despite the repression, the murder of Röhm led to renewed optimism about the imminent collapse of the regime, and membership actually increased, reaching about 4,000 in the Lower Rhine and Ruhr districts combined. This did not last long. The growing centralization and efficiency of the Gestapo under Himmler and Heydrich soon led to further arrests; most crucially, the entire secret national leadership of the Communist Party in Berlin was taken into custody on 27 March 1935. This left local and regional groups disoriented and leaderless, their morale further damaged by growing disillusion with the ultra-left policy pursued by the party since the late 1920s. Desertions and further arrests left the clandestine party organization in the Ruhr and Lower Rhine in tatters. It consisted of no more than a few isolated groups by the time the new District Leader, Waldemar Schmidt, arrived in June 1935. He had little time to make his report to the exiled party leadership, however, since he too was very quickly arrested in his turn.107
A similar story could be told in virtually every other part of Germany. In Halle-Merseburg, for example, a police spy led the Gestapo to a meeting of the district leadership early in 1935; those arrested were tortured to force them to reveal the names of other members; documents were seized, there were more arrests, more torture; and eventually over 700 people were arrested, totally destroying the regional Communist Party organization and leaving the few remaining members completely demoralized. The party cadres were now politically paralysed, not without justification, by mutual suspicion.108 Through careful information-gathering, house-searches, ruthless interrogation and torture of suspects, and the use of spies and informants, the Gestapo had succeeded in destroying the organized resistance of the Communist Party by the end of 1934, including its welfare organization the Red Aid (Rote Hilfe), which was dedicated to helping the families of prisoners and members who had fallen on hard times. From now on, only small, informally organized groups of Communists could continue to meet, and in many places not even these existed.109 They more or less abandoned their earlier ambition of rousing the masses, and focused instead on preparing for the time when Nazism would eventually fall. Of all the groups who held out against Nazism in the early years of the Third Reich, the Communists were the most persistent and the most undaunted. They paid the greatest price as a consequence.110
Those Communists who had sought refuge from repression in the Soviet Union fared little better than their comrades who remained in Germany. The gathering threat of fascism across Europe, the failures of agricultural collectivization in Russia and the Ukraine, and the travails and tribulations of forced industrial growth, all induced a growing sense of paranoia in the Soviet leadership, and when one of the most prominent and popular of the younger generation of Bolshevik leaders, Sergei Kirov, was murdered with the obvious complicity of Bolshevik Party officials in 1934, the Soviet leader Josef Stalin began to organize the mass arrest of Bolshevik Party functionaries, sparking a massive purge that quickly gained its own momentum. Soon, leading Communist functionaries were being arrested and shot in their thousands, and made to confess fantastic crimes of subversion and treachery in widely publicized show trials. The purge spread rapidly down the party’s ranks, where officials and ordinary members vied with each other in denouncing supposed traitors and subversives among their own number. The ‘Gulag archipelago’ of labour camps strung across the less hospitable parts of the Soviet Union, above all in Siberia, swelled to bursting with millions of prisoners by the late 1930s. From Stalin’s acquisition of supreme power at the end of the 1920s to his death in 1953, it has
been estimated that over three-quarters of a million people were executed in the Soviet Union, while at least two and three-quarter million died in the camps.111
In this atmosphere of terror, fear and mutual recrimination, anything out of the ordinary could become the pretext for arrest, imprisonment, torture and execution. Contact with foreign governments, even previous residence in a foreign country, began to arouse suspicion. Soon the purges began to suck the German Communist exiles into their vortex of destruction. Thousands of German Communists who had sought refuge in Stalin’s Russia were arrested, sent to labour camps, or exiled to Siberia. Over 1,100 were condemned for various alleged crimes, tortured by Stalin’s secret police, and imprisoned in grim conditions in the labour camps for lengthy periods of time. Many were executed. Those killed included several members or former members of the party’s Politburo: Heinz Neumann, the former propaganda chief whose advocacy of violence in 1932-3 the Politburo had vehemently rejected; Hugo Eberlein, a former friend of Rosa Luxemburg, whose criticisms of Lenin had not found favour in the Soviet Union; and Hermann Remmele, who had been incautious enough to say in 1933 that the Nazi seizure of power marked a defeat for the working class. Of the forty-four Communists who belonged to the Politburo of the German party between 1920 and 1933, more were killed in Stalin’s purges in Russia than died at the hands of the Gestapo and the Nazis in Germany.112
‘ ENEMIES OF THE PEOPLE’
I
In custody after his arrest for setting fire to the Reichstag on 27-8 February 1933, the young Dutch anarchist Marinus van der Lubbe must have known that he would never leave prison alive. Hitler indeed had said as much. The culprits, he declared, would be hanged. But in saying so, he immediately ran into difficulties with the law. Hanging was the favoured method of execution in his native Austria, but not in Germany, where decapitation had been the only method used for almost a century. Moreover, the German Criminal Code did not make arson punishable by death, unless it had led to someone being killed, and nobody had died as a direct result of van der Lubbe’s deed. Brushing aside the scruples of legal advisers and bureaucrats in the Reich Justice Ministry, the cabinet persuaded President Hindenburg to issue a decree on 29 March 1933 applying the death penalty provisions of the Reichstag Fire Decree of 28 February retroactively to offences, including treason and arson, committed since 31 January, Hitler’s first full day in office. As some newspaper commentators still dared to point out, this violated a fundamental principle of the law, namely that laws should not apply punishments retroactively to crimes that had not carried them when they were committed. If the death penalty had been prescribed for arson at the time of van der Lubbe’s offence, then he might have been deterred from committing it in the first place. Now nobody committing an offence could be sure what the punishment would be.113
Hitler and Goring were not just determined to see van der Lubbe executed; they also wanted to pin the arson attack on the German Communist Party, which they had effectively outlawed on the basis of the claim that it was behind the attempt. So on 21 September 1933 it was not only van der Lubbe but also Georgi Dimitrov, the Bulgarian head of the Western European Bureau of the Communist International in Berlin, two of his staff, and the German Communist Reichstag floor leader Ernst Torgler, who stood in the dock at the Reich Court in Leipzig to answer the charges of arson and high treason. Presiding over the proceedings was the conservative judge and former People’s Party politician Wilhelm Bünger. But Bünger, for all his political prejudices, was a lawyer of the old school, and stuck to the rules. Dimitrov defended himself with ingenuity and skill, and made Hermann Goring look a complete fool when he was called to the witness box. Combining forensic ability with impassioned Communist rhetoric, Dimitrov managed to secure the acquittal of all the accused apart from van der Lubbe himself, who was guillotined shortly afterwards. Immediately rearrested by the Gestapo, the three Bulgarians were eventually expelled to the Soviet Union; Torgler survived the war, and subsequently became a Social Democrat.114
The court’s judgment was careful to conclude that the Communist Party had indeed planned the fire in order to start a revolution, and that therefore the Reichstag Fire Decree had been justified. But the evidence against Dimitrov and the other Communists, it concluded, was insufficient to justify a conviction.115 The Nazi leadership was humiliated. The Nazi daily newspaper, the Racial Observer, condemned it as a miscarriage of justice ‘that demonstrates the need for a thoroughgoing reform of our legal life, which in many ways still moves along the paths of outmoded liberalistic thought that is foreign to the people’.116
Within a few months Hitler had removed treason cases from the competence of the Reich Court and transferred them to a special People’s Court, set up on 24 April 1934. It was to deal with political offences speedily and according to National Socialist principles, and the two professional judges in charge of cases were to be assisted by three lay judges drawn from the Nazi Party, the SS, the SA and other, similar organizations. After a period of rotating chairmanship, it was presided over from June 1936 by Otto-Georg Thierack, a long-time Nazi, born in 1889, who was appointed Saxon Minister of Justice in 1933 and Vice-President of the Reich Supreme Court two years later.117 Thierack was to prove a figure of major significance in the undermining of the judicial system during the war. He introduced a new, sharply ideological note into the court’s already highly politicized proceedings.
Meanwhile, preparations had been under way for the trial of the Communist Party leader Ernst Thälmann, which would set the seal on the regime’s conviction of the Communists for trying to start a revolutionary uprising in 1933. A dossier of charges was compiled, alleging that Thälmann had planned a campaign of terror, bombing, mass poisoning and the taking of hostages. Yet the trial had to be postponed because of the lack of hard evidence. Thälmann’s high profile as the former leader of one of Germany’s major political parties ensured that over a thousand foreign journalists applied for admission to the trial. This already gave the regime pause for thought. There was a distinct possibility that Thälmann might try to turn the trial to his advantage. A death sentence had been agreed in advance. Yet the experience of the Reichstag fire trial made the Nazi leadership, above all Goebbels, wary of putting on another big show trial. So in the end the Nazi leadership considered it safer to keep Thälmann in ‘protective custody’, manacled and isolated, in the obscurity of a cell in the state prison at Moabit, in Berlin, then later in Hanover and later still in Bautzen, without a formal trial. The Communist Party made the most of his imprisonment, retaining him indefinitely in the formal position of Chairman. An attempt to spring him from gaol in 1934, by Communists dressed as SS men, was foiled at the last minute by the action of a Gestapo spy who had infiltrated himself into the rescue group. Under close observation, his correspondence with his family censored, Thälmann did not stand a chance of escape. He never came before a court, and was never formally charged with any offence. He remained in prison, the object of repeated international campaigns for his release organized by Communists and their sympathizers across the world.118
Deprived of the chance to stage a show trial of Thälmann, the People’s Court preferred initially at least to deal with less conspicuous offenders. Its aim was to judge speedily and with a minimum of rules, which in this case meant a minimum of guarantees of the rights of the defendants. In 1934 the Court passed 4 death sentences; in 1935 the figure rose to 9; in 1936, to 10; all but one of these sentences were carried out. Once Thierack had taken over in 1936, however, the People’s Court became much harsher in its approach, condemning 37 defendants to death in 1937, with 28 executions, and 17 in 1938, all but one of whom were executed.119 From 1934 to 1939, roughly 3,400 people were tried by the People’s Court; nearly all of them were Communists or Social Democrats, and those who were not executed received sentences averaging six years’ penitentiary each.120
The People’s Court stood at the apex of a whole new system of ‘Special Courts’ established to deal with political
offences, often of a fairly trivial nature, such as telling jokes about the Leader. In this, as in so many other areas, the Nazis were not being particularly inventive, but drew on earlier precedents, notably the ‘People’s Courts’ set up in Bavaria during the White Terror after the defeated revolution of 1919. There was no appeal from their summary jurisdiction.121 But the People’s Court and the Special Courts had nothing like a monopoly over political cases. Nearly 2,000 people were condemned for treason between 18 March 1933 and 2 January 1934 by the regular courts; twice as many were still in remand custody at that point. They included many prominent and less prominent Communists and Social Democrats. Thus the new courts, all of which had a formal juridical status, ran alongside the courts of the established legal system, which were also engaged in dealing with political offences of many kinds. Indeed, it would be a mistake to imagine that the regular courts continued more or less unaltered by the advent of the Nazi dictatorship. They did not. Already in the first full year of Hitler’s Chancellorship, a total of 67 death sentences were passed on political offenders by all the different kinds of court combined. Capital punishment, effectively abrogated in 1928 then reintroduced, though only on a small scale, in 1930, was now applied not only to criminal murders but even more to political offences of various kinds. There were 64 executions in 1933, 79 in 1934, 94 in 1935, 68 in 1936, 106 in 1937 and 117 in 1938, the great majority of them widely publicized by garish scarlet posters that Goebbels ordered to be put up around the town where they took place. Previous ceremonial accompaniments to executions, which took place inside state prisons, were abolished, and in 1936 Hitler personally decreed that the hand-held axe, traditional in Prussia but the object of a good deal of criticism from the legal profession, including prominent Nazi jurists, should be replaced everywhere with the guillotine. 122
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