Jewish Life in Nazi Germany: Dilemmas and Responses (13 page)

Moreover, in most cases, the expert opinions offered varying degrees of likelihood and probability as opposed to the certainty desired by jurists to reach a decision. For believers in racial theory and Nazi propaganda, it was difficult to accept the fact that Jews had no distinct, hereditarily ingrained phenotypical traits.
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Ideology was not supported by empirical evidence; thus, the measurements, charts, and tables produced in the course of the racial investigations said more about the mindset of their scientific originators than about the ancestry of their objects of study. In 1939, in an official party publication, otto Re-che, one of the founders of
Erb-und Rassenbiologie
(Hereditary and Race Biology), refuted the judicial demand for unequivocal proof with the hardly convincing argument that racial biologists were aware of the “general imperfection of human knowledge” (
der allgemeinen Un-vollkommenheit der menschlichen Erkenntnis bewußt
).
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Cases and Context

Let us take a closer look at some of the ancestry cases handled by Berlin prosecutors in the broader context of racial policy as well as in their consequences for those affected. Having to administer the family law novella, despite its inherent problems, the Berlin prosecutors eagerly defended their territory against rival institutions while paying little attention to the fate of the persons for whom a court decision could mean life or death. By the time the new law took effect, anyone who had experienced German
Judenpolitik
directly or indirectly knew that the judiciary represented but one institution involved in the execution of the “final solution.” Himmler’s security police and SD insisted on upholding its prerogative vis-à-vis the courts; its dislike of legal procedures grew with the pace of genocide. In late summer 1942, the SD, in its
Meldungen aus dem Reich
, criticized state agencies for slowing down the executive process by bothering themselves and expert racial scientists with ancestry cases.
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After the Reichssippenamt had come under the control of ernst kaltenbrunner’s Reich Security Main of-fice in late 1943, the family law novella appeared as one of very few loopholes left in the attempt to evade being caught up in the “final solution.” one year before the end of the war, the chief of the security police and SD complained at the Reich Justice Ministry that Jews used the courts to hide their true ancestry so that they could escape “security police measures planned and already implemented against them” (
für sie vorgesehenen bzw. bereits durchgeführten sicherheitspolizeilichen Maßnahmen zu entziehen
).
⁴³

f
Igure
2.1.:
Form for the authentication (by German police officials) of photographs used in conjunction with racial ancestry cases handled in 1942 by the Berlin prosecutor’s office.
Courtesy
: Landesarchiv Berlin.

f
Igure
2.2.:
Form for the authentication (by German police officials) of photographs used in conjunction with racial ancestry cases handled in 1942 by the Berlin prosecutor’s office.
Courtesy
: Landesarchiv Berlin.

The Gestapo and SD kept up their criticism of the judiciary, while those looking to the courts for help had all the more reason to fear for their future. It is clear from the files of the Berlin Landgericht that the prosecutors in the Reich capital would rarely go ahead with a case against the advice of Himmler’s officers.
⁴⁴
where they did, a positive outcome for the claimant was anything but guaranteed. The following is one such exceptional case: Julius k., a Jew according to the Nuremberg Race Laws, who was fifty-years old and was married to a non-Jewish woman. In March 1942, his lawyer filed a case at the Berlin prosecutor’s office for racial reclassification based on the claim that k.’s mother had had an affair with an “Aryan” man. The alleged biological father as well as both his parents had died in the early 1930s; k.’s siblings had already been, as his lawyer called it, “evacuated.” Before k. filed his case in Berlin, a regional version of the Reich kinship office, the Landesamt für Rassewesen (State office for Race Affairs) in the state of Thuringia, had ruled that he was a Jew and that his children were
Mischlinge
. Bernhard Lösener, Judenreferent in the Reich Ministry of the Interior, had looked into the case, agreed, and threatened “further measures” (
weitere Maßnahmen
) against k. and his wife for still pursuing the matter. Prosecutors in Berlin were not impressed by interventions from the outside, and demanded an additional investigation, which, in view of the backlog of work facing the relevant institutes, was not forthcoming. The director of the Thuringian Landesamt called for short shrift (
kürzeren Prozeß
) and voiced his consternation that in early 1945, one should have more important things to do than to “hatch a half-Jew” (
einen Halbjuden auszubrüten
). The delay caused by the prosecutor’s insistence on ancestral proof worked in k.’s favor; the end of the war seems to have saved him and his children from the fate of his siblings.
⁴⁵

exceptions proved the rule. The aim of the state’s jurists was not to undermine the effects of executive
Judenpolitik
, but to assist it by mak-ing the Nuremberg definition work. Indeed, there were cases under the family law novella in which the Berlin prosecutor brought charges against “Aryans” whose ancestry was doubted and who, in the process, became downgraded.
⁴⁶
where rivalries between both agencies ensued, it was the applicant and his or her family members who had to bear the consequences.

A case in point is that of the forty-five-year-old Dr. Hans L., who approached the Berlin prosecutors in February 1942 after his father-of- record had told him on his deathbed that Hans and his two siblings were illegitimate children. According to the application for opening an ancestry case, Hans L.’s mother Alma had confirmed the paternity by her “Aryan” friend and explained her long silence with a promise to her husband; prior to his death, she had seen no reason to share the secret as her other two children were living in the USA, while Hans, married to an “Aryan” woman, father of a baptized daughter, war veteran, and an established doctor, seemed not threatened. As the danger for her family was mounting, Alma L. decided to disclose the embarrassing truth, as she put it to the Staatsanwalt, “in the interest of the living” (
im Interesse der Lebenden
).

The expert opinion, as usual, did not prove anything regarding Hans L.’s ancestry, nor did it quantify his “Jewish race component.” Shortly after the prosecutor, Staatsanwalt Horn, who worked on many of the Berlin cases, had sent the file on to the Gestapo office for their comment, L.’s mother must have received her deportation order to Theresienstadt. The file contains a note that Hans L. called the prosecutor’s office on 2 october 1942 expressing his deep anxiety and urging the postponement of her impending deportation. That same day, Horn asked at the Gestapo whether “the evacuation of Alma Sara L. can be suspended until the closing of the case as she is needed as witness.” on 8 october 1942, Alma L. signed a notarized statement confirming that all three of her children had an “Aryan” man as their biological father; she added that she was about to be deported, and thus in all probability could not attend any future court proceedings in her son’s case. The statement also mentioned that the advice to testify before a notary had been provided to Hans L.’s wife by a Gestapo officer.

For her son, Alma L.’s statement must have been a ray of hope; for the Gestapo, it made no difference. Having sat on the case file for al-most four months, the Gestapo office sent it back to the prosecutor in January 1943 with the remark that the “evacuation” of Alma L. settled the matter. Indeed, shortly thereafter, Staatsanwalt Horn informed Hans L. that his case could not go to court due to lack of evidence. Despite L.’s insistence that the
Gutachten
(expert opinions) by the racial experts had not ruled out his partly “Aryan” descent, and despite his plea that the case was “for me and my child of vital importance” (
für mich und mein Kind von lebenswichtiger Bedeutung
), Horn turned him down. Hans L. was deported to an unknown place, his fate unknown. whether his mother Alma survived the war also remains unclear.
⁴⁷

Being privileged did not mean much after the “final solution” had started. Like Hans L. who lived in a
Mischehe
(mixed marriage) and had a baptized daughter, Gertrud elisabeth H. belonged to a fringe group outside the core of German anti-Jewish policy. Born in 1887 as the daughter of a Jewish father and an “Aryan” mother, Gertrud H. was a
Mischling
who faced deportation in late 1941, the time when she applied at the Berlin prosecutor’s office. Hers was typical for the majority of cases: both of her parents as well as the alleged “Aryan” father were already dead. Gertrud H. claimed to have been told about her true father on her mother’s deathbed, but had remained silent to avoid embarrassment for her late parents. only the imminent deportation made her approach the prosecutor’s office, but it was too late. Though Staatsanwalt Horn acted promptly, the case got stuck in the queue of racial expert opinion. when Gertrud H. received an appointment for a racial examination, she was already gone. In January 1942, she had been deported to Riga.
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The Berlin court files show only to a certain degree how members of the target group made use of the narrow opportunities at their disposal to evade being labeled under the Nuremberg definitions, especially after the beginning of deportations from the Reich to the killing centers in the east. we do not know how many of the cases were based on claims fabricated by the applicants or their relatives. Standard arguments according to which the Jewish husband, at the time of conception, had been absent, had health problems that prevented him from fathering a child, or had already broken with his wife, seem highly unreal, especially under the circumstances. Postwar testimony by those who survived can help here, as Beate Meyer has shown for Hamburg.
⁴⁹
To rule out completely the possibility of illegitimate paternity among Jewish couples or those in a mixed marriage implies too rigid an interpretation of bourgeois sexual morals; yet the truth can rarely be established. An exception from this rule is the case of Günter B., born in June 1939, whose “Aryan” mother was married to a Jew. The application filed one year later by the state custodian (Jugendamt) passed all legal hurdles without any problems, despite the fact that no racial expert opinion was produced to back up the claim by the Jewish husband, willi B., that he was not the child’s father. willi B., however, easily convinced the prosecutor as he had been incarcerated since the middle of 1938 without interruption in the Buchenwald concentration camp.
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As indicated already, the expert opinions produced by racial scientists, despite the key role they played in determining whether the prosecutor would open a case under the family law novella as requested by the applicant, rarely helped in clarifying ancestry to the extent hoped for by the applicants or desired by state jurists. Given the inherent deficiencies of their approach, the experts stayed within the narrow confines of self-referential guesswork and racial astrology, only occasionally challenged by criticism from the outside or from members of their own profession. Applicants had not only to overcome high stakes in convincing race experts and prosecutors; they also faced additional risks involved in the bureaucratic process. As just one example of the tangled web of persecution, in December 1938, Luise w., a Jewish woman, approached the Berlin Staatsanwaltschaft with the claim that the biological father of her son Heinz Georg C., born in 1911, was not her Jewish husband whom she had divorced in 1923, but an “Aryan” man. As the racial examination of this “Aryan” man, at the time a prisoner in the Sachsenhausen concentration camp, neither confirmed nor refuted this claim, prosecutor Horn decided not to proceed with the case. Yet Luise w. pleaded for a reassessment, until the senior prosecutor (oberstaatsanwalt) at the Berlin kammergericht started an investigation against her because she had failed to use her forced name “Sara” when signing her letter of appeal. It is not clear from the file what happened to Luise w. After the case had lapsed, her son Heinz Georg C. was classified by the Reich kinship office in August 1942 as a “full Jew” and was deported to Auschwitz in March 1943, like his sister before him. Both perished.
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