The Ossietzky files

Sabine Reul reports on the latest German court case to put the past in the dock

On 4 May 1938, the writer Carl von Ossietzky died in Gestapo detention at the age of 48, after five years in concentration camps. Today his case has become another focus for attempts to revise the official history of the Nazi experience.

Although he died a prisoner of the Nazis, Ossietzky was actually imprisoned for political offences by the courts of the Weimar Republic more than a year before Hitler was installed in office. As editor of the radical journal Weltbühne, he was sentenced to 18 months in November 1931 for publishing an article disclosing the secret rearmament of the German army, the Reichswehr. The sentence was pronounced by judge Otto Baumgarten of the Berlin Reich Court, who was to become a leading state prosecutor at the notorious Nazi Volksgerichtshof in 1936.

Ossietzky's case is now due to be reexamined by the German High Court. His daughter Rosalinde applied for a judicial review last year in the belief that, after German reunification, the time had come for official rehabilitation of her father. But the review of the case is taking a course which would have been unthinkable only a few years ago. Far from rehabilitating the eminent writer and victim of Nazi terror, the German judiciary seems bent on abusing him again - this time to rehabilitate the reactionary excesses of Weimar courts in the twilight years of the republic.

Revisiting the scene

In a grotesque case of revisiting the scene of former crimes, German judges have already seen fit to detain and try former East German leaders Erich Mielke and Erich Honecker in the very prisons and courtrooms where they were held and tried as communists by fascist judges in the 1930s. Now the Ossietzky case seems destined to serve as a further excuse to redefine official attitudes to the German past.

Rosalinde von Ossietzky's application to reopen the case was pronounced 'inadmissible' by a Berlin court in July 1991. The court argued that there was no new evidence 'likely to substantiate exoneration of the defendant'. It further declared as legally impeccable the 1931 verdict that Ossietzky was guilty of treasonous disclosure of military information to a foreign power under a law enacted just before the outbreak of the First World War in 1914. This decision has now been sanctioned by leading federal attorney Alexander von Stahl, who has advised the supreme court to throw out the appeal and reaffirm the Berlin verdict.

The federal attorney emphasised that the 1931 sentence was legitimate since, as editor of the Weltbühne, Ossietzky had threatened the 'security of the Reich' (see E Spoo, 'Einmal Landesverräter, immer ein Landesverräter?', Frankfurter Rundschau, 14 August 1992). In other words, for von Stahl and his colleagues the exposure of the secret rearmament of the Reichswehr in 1931 remains a crime - even though that rearmament was illegal both under the terms of the Versailles Treaty and the Weimar constitution.

A cause célèbre

The Ossietzky case is the most important attempt yet to use the courts to revise official German history. Ossietzky was not a communist, but a radical democrat writer who became a cause célèbre of international anti-fascism in the 1930s. Thomas Mann, Albert Einstein, Arnold Zweig, Romain Rolland, Kurt Tucholsky and many others supported Carl von Ossietzky during both his 1931 trial and his incarceration under the Nazis. Ossietzky became the champion of mainstream anti-fascism.

The campaign in his aid culminated in the award of the 1935 Nobel Peace Prize to the concentration camp inmate. Such was the diplomatic pressure generated by the campaign for Ossietzky that the Hitler regime felt obliged to allow international League of Nations delegates to visit him at the Papenburg concentration camp in 1935, and eventually he was transferred to Gestapo custody in the Berlin Nordend hospital. The international publicity infuriated Ossietzky's captors: in 1936 Hitler personally initiated a law to prohibit the acceptance of Nobel Prizes by Germans.

Treason redefined

That such a prominent anti-Nazi is now being denied rehabilitation signals the desire of the German authorities to challenge key assumptions of the postwar anti-fascist consensus. In the past it was generally assumed that the barbaric nature of the Nazi regime was sufficient reason to oppose it by all possible means, including cooperation with Germany's foreign 'enemies'.

Until recently the exposure of secret remilitarisation measures instigated by the Reichswehr in the run-up to the fascist takeover would have been rated as at least an honourable, if not a courageous and commendable deed. It would have seemed bad taste even to ask whether such action might have benefited Germany's foreign rivals - never mind to designate it an act of treason. Yet that is what leading figures in the German judiciary are now doing.

By retrospectively denouncing as treason the exposure of the revival of German militarism in the early 1930s, the authorities have come pretty close to revising the official view of Germany's role in the Second World War itself. No doubt further cases will soon be dragged up by the German courts to proceed further along this path.

There is another aspect which gives this case its special poignancy. Not only was Ossietzky an eminent focus of international attention in the 1930s - the deed for which he was imprisoned was, and remains, a highly delicate international diplomatic affair.

The incriminating article which appeared in the Weltbühne on 12 March 1929 exposed secret attempts by the Reichswehr to rebuild an air force. Such activity flouted the military restrictions imposed on Germany after the First World War in Article 198 of the Versailles Treaty --restrictions which were also enshrined in German law in 1926. The 1931 sentence imposed on Ossietzky was therefore illegal both under international treaties and in German law. Its official reaffirmation today is legally tenuous. More importantly, however, it is diplomatically contentious.

Two fingers

By rubber-stamping this sentence, the German authorities are effectively condoning one of Germany's earliest breaches of international treaties - a precedent which was to be followed under the Nazi regime with the remilitarisation of the Rhineland in 1934 and other preparations for war. In grasping this nettle, leading German judges are showing two fingers not only to the postwar anti-fascist consensus, but to the Western powers which were their wartime enemies and are now their allies/rivals.

At a time when Germany is taking steps to break out of the international straitjacket imposed on it at the end of the Second World War, and to take its place on the world stage as a great military and diplomatic power once more, the message behind the Ossietzky case should be clear to all. It remains to be seen whether the highest court in the land will sanction this new venture.