The Lesser Evil

Hans Calmeyer was the head of the office for Jewish matters in the Reichskommissariat of the German-occupied Netherlands. On the one hand, he was part of the operations that resulted in 76 % of the 140,000 Dutch Jews deported to the east and killed. He was responsible for the development, interpretation, and application of the Judenrecht in the Netherlands, which above all included the legislation that required that all Jews were registered as such in 1941.¹ On the other hand, he and his office were directly responsible for the saving of hundreds of lives.

Apart from requiring all Jews to give information on their heritage and to register, his office was responsible for deciding on the categorisation of persons in instances where the ancestry was doubtful or contested. According to the Nuremberg legislation, only persons with more than two Jewish grandparents were characterised as “full Jews”. In addition, persons with two Jewish grandparents were to be regarded as full Jews if they belonged to the Jewish faith. Others with Jewish ancestry were characterised as “mixed” or Aryan. Only full Jews were subject to deportation.

Calmeyer’s office dealt with 5,700 cases of doubtful or contested ancestry from 1941 to 1944. In 3,700 of these, it concluded that the person was not a full Jew according to the law. It is a recorded fact that in this work, Calmeyer and his people employed every possibility of discretion and extralegal tricks to decide cases in favour of the respondent. He instigated a complaints procedure, introduced evidence rules in favour of the respondent, and accepted statements and obviously forged documents stating a person’s non-Jewish ancestry. He accepted declarations from Jewish mothers that their child was a result of an extramarital relationship with a non-Jew. He even provided lawyers of the respondents with blank documents so that they could provide more convincing forgeries.

An important part of the success of the saving of hundreds of people from extermination in this way was the cover of legality that the decisions were endowed with. Calmeyer was highly respected as an authority on legal issues relating to the Jews by his superiors and by the SS, even though the SS was critical and frustrated by having to postpone deportation of persons because their case was pending in Calmeyer’s office. Once a decision was made, however, respected by the SS as according to the law, the person deemed not a Jew was not deported.

Calmeyer’s role has been subject to controversy since the war. By some he is regarded as a Nazi bureaucrat complicit in the high rate of extermination that beheld the Dutch Jews. By others he is regarded as a hero of the resistance against the Nazi policy of extermination and as a saviour of hundreds of lives. It is a fact that he contributed to the implementation of the final solution in the Netherlands. Apart from administrating the registration of the Jews in the Netherlands, he also decided 2,000 cases of ancestry against the respondent, thus sending them to their death in the camps. On the other hand, most historians find it obvious that with a dedicated Nazi official in his place, those who were saved by Calmeyer would also have met with certain death.

Hans Calmeyer was at the receiving end of the anti-Jewish legislation and responsible for its implementation. At its originating end and responsible for its development was Bernhard Loesener. He too contributed to the mitigation of the atrocities against the Jews according to his own accounts.

Loesener was in charge of the section regarding racial and Jewish matters in Division I of the Ministry of Interior from 1933 to 1943. He was a witness for the prosecution at Nuremberg in the “Ministries Case” against his superior Wilhelm Stuckart, State Secretary (Staatssekretaer) in the Reich Ministry of the Interior (Reichsministerium des Innern) from 1935 to 1945. He also wrote an account of his years in the Ministry, published in Germany 1961.²

In his position as head of the office of racial and Jewish matters, Loesener was the “Jewish expert” of the Ministry. He was instrumental in the drafting of the Nuremberg laws of 1935 and in the bureaucratic wrangles over the subsequent implementing of regulations and decrees. According to Loesener, there was a permanent fight between the Ministry and the Party over the extension of the scope of the anti-Jewish legislation. The Ministry had, according to him, a clear policy to limit and mitigate the effects of the Nazi persecution of the Jews. In his account, he wrote:

Fortunately the Ministry of the Interior also had quite a few staff members who fought against the Party with every means at their disposal, and continued to do so until the very end.³

Loesener’s account is contested, and independent sources suggest that the Ministry had a much more acting and accepting part in the persecution of the Jews than he admits. But if we take Loesener on his words, can he then be seen as a hero? The first legislative measure was the “Law for the restoration of the Professional Civil Service” of April 7, 1933. This law purged the civil service of Jews and politically undesirable members. According to the definition attached to the law, anyone with at least one Jewish grandparent was included under its measures. This definition was also employed in subsequent purges by private organisations and employers.

The drafting of the Nuremberg laws in 1935 was the first occasion when the legal definition of “Jew” was brought up on a general basis. Loesener had defined it as his first task, “trying to improve the position of the one quarter Jews”.⁴ Prior to the Nuremberg laws, there were battles over the question between the Party and the Ministry. At the meeting in Nuremberg, the Ministry succeeded in limiting the application of the Jewish measures to “full Jews”, i.e. persons with more than two Jewish grandparents. Following the first decree to the Reich Citizenship Law, the bulk of the half-Jews and all persons of mixed blood of small degrees were not to be considered and treated as Jews; the same applied in most cases to Jews married to non-Jews, the so-called privileged Jews. In total, this accounted for more than a hundred thousand people within the Reich. This delineation was under constant attack from the Party and the SS, but it held stand until the collapse of the regime.

According to Loesener, the Nuremberg laws were at the time not seen exclusively as laws of persecution. “Many people who had in no way been adherents of the Nazi system, and even those directly affected, viewed them with a certain relief because they promised to put an end to a state of complete legal disarray”, he writes.⁵ Following the enactment of the Nuremberg laws, Loesener and the Ministry were in constant conflict with the SS and the Party over the scope of the anti-Jewish measures, both over how the concept of a Jew should be defined and over the application of suppressive measures, such as rehousing, wearing of the Star of David, the right to entrance into bomb shelters, and so on, for half-Jews and Jews married to Aryans.

Loesener also used his position to help people in individual cases. He gave advice on legal opportunities and even provided information and warnings on imminent legal or police measures. The Ministry was also the final decision-making body for petitions requesting review of ancestry cases. According to one of his colleagues, under Loesener’s direction, all objections of the petitioner were investigated, even if they appeared to be threadbare. He gave advice on how the petitioner’s case could be improved upon and always decided a case in favour of the petitioner when there was room for doubt or for the exercise of administrative discretion. For instance, illegitimate children of Jewish women were classified as of mixed ancestry whenever there was any room for doubt as to the identity of the father. As long as an investigation into the ancestry of a person was pending, he was exempt from deportation. This measure alone saved the lives of many people.

Loesener’s role and contribution to the Holocaust is subject to controversy.⁶ Most of what is known about his efforts is based on his own accounts—to the Nuremberg Military Tribunal and in his published recollections. This can lead to an estimation of his actions as more favourable to himself than in actuality and his importance to the saving of persons of mixed ancestry and in marriages to Aryans as exaggerated.

A more probable explanation for the restraint shown towards the half-Jews and Jews married to Germans was the fear the leading Nazis had of popular reactions toward their policies. Popular protests led to the halting of the euthanasia programme against the mentally ill in 1941, and the open demonstrations by German wives of 1,700 Jewish husbands in Rosenstrasse in February 1943 led to their release. Hitler was concerned with the people, not with the bureaucrats who were compelled to support and enforce his policies.⁷ Deporting the half-Jews and the Jewish spouses would have involved challenging many tens of thousands of their German relatives and would have challenged concepts of marriage and family life deeply rooted in the German consciousness and traditions.

Seen from the offices of the Ministry of the Interior, the bureaucratic resistance to the more extreme demands of the Party and the SS would nevertheless be seen as important because it appeared effective since the policy of extermination did stop short of half-Jews. It would be natural for those who defended this policy to take credit for the results.

These two stories are examples of the argument of the lesser evil in extreme cases. But they show the nature of the dilemma and the difficulties in employing the argument. Can sending thousands of people to their deaths be justified in order to save a few? This is a classic dilemma in moral theory. The situation of the judge is different from the known examples of the runaway tram or the drowning child. Although some of the relevant factors are the same, there are some crucial differences. The judge is instrumental in creating the situation, and he is faced with it repeatedly.

The argument of the lesser evil can be employed on a slighter scale than extermination and still involve difficult dilemmas. Hubert Schorn cites the quandary facing many judges in Nazi Germany due to the existence of a parallel system where the Gestapo took care of the political aberrant and “unwanted elements” in their cellars and camps outside the scope of the law. In many cases, the Gestapo apprehended persons who were released by the courts as they walked out of the courtroom. Shorn states that judges in some cases held people in custody to protect them from this, even if they considered that it was unfounded. Some judges even convicted persons they thought were innocent, to prevent the Gestapo from exercising their form of justice.⁸

To evaluate and criticise such reasoning and the choice between protecting society and protecting individuals, we need to take a footing outside of the law. Importantly, such a footing can also provide a platform from where the conscientious judge may reflect on how he should construe the law and whether he should give effect to the will of the government or choose another course.

One approach often taken by people who find themselves in the situation of a judge where emergencies are appealed to for limiting basic rights is that following the course of the government is the lesser of two evils. It is often perceived as a worse alternative to force the government to take action outside the scope of the law or to refuse to contribute with the result that the government appoints other, and more accommodating, judges. The judge may also believe that upholding the government and some measure of law and order is better than the alternative.

Often, the judge identifies with the government in the perception of a threat to society and accepts the argument that limiting the rights of some is the lesser evil. Denmark and Belgium during the German occupation under World War II show two different courses of action in the collaboration of the courts and the police in the oppressive measures of the occupying authorities. In both cases, the courts acted in line with the governments. The Danish government remained intact after the German occupation in April 1940 and entered into a policy of necessary collaboration. This included the police, the prosecution, and the courts. It was an aim of Danish policy to keep Danish jurisdiction over Danish citizens, and the criminal laws and rules of procedure were modified to accommodate the German demands for an effective protection of German interests. The courts contributed and metered out harsh punishments after procedures that departed from the normal requirements of the rule of law. Despite this, the Germans demanded the handing over of Danish prisoners, and by December 1942 80 Danes were in German custody.

To the legal consciousness of the people, it was intolerable that the Danish police should arrest Danes on behalf of the Germans. Nevertheless, the government maintained that it was preferable that the arrests were made by the national police. Even though there were opposing views in the police, the police and courts remained loyal to the government policy of collaboration. An observer noted in 1945 that the grip the German occupier had over the central government automatically extended to the whole machinery of the government due to the habitual obedience and loyalty within the public sector.⁹ On the other hand, it is a fact that whereas in Norway 292 members of the resistance were sentenced to death by German and Norwegian collaboration courts during the occupation, in Denmark the death penalties totalled to 133.¹⁰ All of these were imposed by German courts after the breakdown of the collaboration policy of the Danish government in August 1943.

In August 1943, the Danish government resigned and the Germans declared martial law. The government encouraged the administration to remain in their posts and continue their duties “for the best of the country” for the duration of the emergency situation. In effect, Denmark was governed by the heads of the ministries for the remaining period of the war. The Germans organised units of Danish police under German command. Many of the policemen were recruited from soldiers who had fought voluntarily for the Germans on the Eastern Front. All members of these police forces were later convicted for collaboration with the Germans. But their existence during the last years of the occupation may have protected the ordinary police from becoming too involved in the interests of the German occupiers. After the war, only 1 chief of police and 30 police officers were convicted for collaboration.¹¹

In Belgium too, there were controversies between the national administration and the German occupier over the jurisdiction in cases involving Belgium nationals.¹² The German military tribunals exercised competence in cases involving illegal possession of firearms, but the German police was not equipped to handle all the cases. The Belgian authorities wanted exclusive jurisdiction over cases involving own nationals. The Germans demanded that the laws were reformed to ensure convictions and harsh punishment, and the Secretary General of Justice was willing to accommodate this provided the Germans gave a written guarantee that the cases would be handled by Belgian authorities.

The Belgian exile government issued a decree in 1942 prohibiting the handover of Belgian nationals to the enemy. The police abided by this and refused to cooperate with the military administration when this entailed handing over Belgian nationals. The Germans put pressure on the Belgian authorities to ensure cooperation and even considered arresting leading figures of the Belgian judiciary. They decided against this because this would make the cooperation of persons subordinate to them even more unlikely. The Germans finally gave in and gave exclusive jurisdiction to the Belgian courts. A notable exception to the protests by the Belgian courts was, however, the deportation of Jews. Whereas they protested together with the law society against the purge of Jews within the legal community, they did not protest against the German measures against the Jews as such or against the deportations.

In other cases, the judge may not identify with the government or its policies. Still, his identification with a judicial role may compel him to uphold evil measures. Many antislavery judges of the mid-nineteenth century argued in this way. The same line of argument is presented by current US judges who oppose the strict sentencing regimes imposed upon them by the legislator and by superior courts.

Judges may moderate the excesses of a regime and do justice in individual cases. They may even stem oppressive trends in the beginning and prevent society from developing into a society of oppression. Such contributions will often entail compromises. A judge is, after all, an administrator and executor of the legal policy of the regime he serves. Should contributing to a lesser harm to avoid the greater harm be a recommended way of thinking when a lawyer is asked to contribute to harm and unjustness?

After the Second World War, when the extent of the involvement of the courts in the Nazi oppression was revealed, many German judges sought the lesser evil argument as a defence. Judges in Germany were aware of the “dual state”, and the Gestapo in many cases was ready to intervene against any person, without any legal guarantees, for political ends and place a person who had been acquitted in a concentration camp. In the Justice Trial, this line of defence was presented in the following way:

Schlegelberger presents an interesting defense, which is also claimed in some measure by most of the defendants. He asserts that the administration of justice was under persistent assault by Himmler and other advocates of the police state. This is true. He contends that if the functions of the administration of justice were usurped by the lawless forces under Hitler and Himmler, the last state of the nation would be worse than the first. He feared that if he were to resign, a worse man would take his place. As the event proved, there is much truth in this also.¹³

The judges of South Africa during apartheid defended themselves along the same lines:

Those of us who were white who chose to remain in South Africa, and who were considered to be properly qualified in both personal and professional respects to perform the judicial function, had to make up our own minds, when asked to accept judicial appointments, whether society as a whole was better served by our accepting appointments than by our declining them. On the answer to that (and of course highly subjective personal considerations) our acceptance or refusal depended. There was also the risk that, if members of the Bar declined to accept appointments, the government might do what it had sometimes threatened to do, and appoint civil servants (magistrates, law advisers, and the like) as judges. We did not consider that to be in the public interest. We thought more good would come of our accepting appointment than of our declining to do so.¹⁴

The defence of the lesser evil was rejected by the US Military Tribunal as a matter of law in the Justice Case. The Tribunal discarded the argument that the lawyers were not the worst perpetrators of the Nazi atrocities:

That their program of racial extermination under the guise of law failed to attain the proportions which were reached by the pogroms, deportations, and mass murders by the police is cold comfort to the survivors of the “judicial” process and constitutes a poor excuse before this Tribunal. The prostitution of a judicial system for the accomplishment of criminal ends involves an element of evil to the State which is not found in frank atrocities which do not sully judicial robes.¹⁵

Schlegelberger, who argued that his role in the Ministry had been to moderate the Nazi policies and who, to a certain extent, was heard on this by the Tribunal, was nevertheless convicted and sentenced to life imprisonment.

It was also rejected by the Military Tribunal in the Ministries Case. In the case against Wilhelm Stuckart, State Secretary and Loesener’s direct superior at the Ministry of the Interior, the Tribunal stated:

In justice to the defendant it should be said that we are convinced that for a long time he courageously fought the measures against the Mischlings and attempted to intervene in favor of mixed marriages.¹⁶

Nevertheless, the Tribunal found him guilty with the following words:

[T]he skill, learning, and legal knowledge of Stuckart was placed at the disposal of those who originated the plan of extermination. The fact that his conscience may have been troubled and the fact that he saw not only the wrong but the folly of the proposals with respect to Mischlings, cannot excuse or condone what he did.¹⁷

Should we accept an appeal to the lesser evil from a moral point of view, or should we side with Gustav Radbruch in his appraisal of the US Military Tribunal’s judgment over the leaders of the Nazi judiciary? To this, we quote:

Never believe that you can avoid evil by contributing to evil. This experiment has been tried often enough with failure, and is often just an excuse for cowardly complicity. Even when this is not the case, such as with Schlegelberger [German Minister of Justice, 1941–1942], association with the evil inevitably leads to blindness so that one no longer sees the true nature of the evil that one is participating in.¹⁸

Hannah Arendt is also quite clear on this issue:

“Politically, the weakness of the argument has always been that those who choose the lesser evil forget very quickly that they chose evil… If we look at the techniques of totalitarian government, it is obvious that the argument of “lesser evil” – far from being raised only from the outside by those who do not belong to the ruling elite – is one of the mechanisms built into the machinery of terror and criminality. Acceptance of lesser evils is consciously used in conditioning the government officials as well as the population at large to the acceptance of evil as such”.¹⁹ Arendt here points to the dangers of moral blindness and entrapment that have been discussed above. Accepting the lesser evil may easily weaken and narrow the human responses of the judge.

Authoritarian rulers depend upon support and contribution from the sources of power in society. They need the skill and resources of people employed to perform state functions, hereunder also the judiciary. They depend on popular support, and in many cases courts contribute to this by providing the regime with legitimacy. Withdrawal of the support of important institutions such as the courts may weaken and, in the last instance, dissolve the power of the authoritarian rulers.²⁰

Refusal to play the tune of the regime, even when it is oppressive, does not, however, always lead to the best results. History shows that critical judges may push the regime to cover its oppression under extralegal schemes and employ police, military, and death squads far outside of public view and the jurisdiction of the courts. Under the military dictatorship in Brazil, the Brazilian Supreme Court refused to implement the most repressive measures of the regime and invalidated them on natural law grounds. As a result, the regime circumvented the law with extralegal terror, in addition to establishing special military courts to deal with political opponents. According to observers, the military courts, with their positivist and cooperative attitude to the laws of the regime, saved more lives than the Supreme Court did with its resistance.²¹ Should the results decide?