Rule of Law: Country Studies — Federal Republic of Germany
Germany Country Study
Rankings in Freedom in the World 2016: Status: Free. Freedom Ranking: 1; Political Rights: 1; Civil Liberties 1.
Federal Republic of Germany
Germany has experienced one of the greatest political shifts of any country between dictatorship and democracy, between civilization and barbarism, and between the rule of law and lawlessness. After becoming a modern state in 1871, Germany rose to become Europe's great economic power, but its aggressive policies led it to a disastrous defeat in World War I, a conflict that was catastrophic for all of Europe. Following a period of unstable democracy, the country fell under the iron grip of Nazism from 1933 to 1945. Adolf Hitler's Third Reich, which sought to achieve world domination, was finally defeated in World War II by the Western Allies and the Soviet Union, which occupied and divided the country in two, West and East.
From a condition of absolute defeat, West Germany emerged from Allied control to become solidly democratic, a bulwark of the NATO alliance, and an economic world leader. In East Germany, the Soviet Union imposed a harsh Communist dictatorship through a loyal German-led communist party. The stark contrast between East and West was symbolized by the Berlin Wall, built by the Communist government in 1961 to keep people from escaping to the Western part of the divided city. In 1989, East German citizens, encouraged by a successful campaign to force the authorities to open the border, mobilized in mass demonstrations against the Communist regime that culminated in citizens tearing down the Berlin Wall from both sides of the city. The communist dictatorship also fell and a year later, on October 3, 1990, a new East German government agreed to reunify with West Germany to form the Federal Republic of Germany; the reunited Germany adopted a single constitution and a democratic system.
Germany is the 63rd largest country in the world by area (137,882 square miles). It has the 16th largest population at 81.5 million in 2015 (which is 91.5 percent ethnic German, 2.5 percent Turkish, and 6.1 percent other European). In the center of Europe, Germany is bordered by nine countries and has access to the North and Baltic Seas. Despite the heavy economic burden of absorbing the much poorer East, Germany has remained the fourth-largest economy in the world (next to the U.S., China, and Japan), with strong manufacturing, export, agricultural, service and technology sectors. In 2014, according to the International Monetary Fund (IMF), Germany’s nominal gross domestic product (GDP) was $3.87 trillion. It also ranked 18th in the world in nominal GDP per capita at $41,267 per annum. The U.N.’s 2015 Human Development Index placed Germany 6th behind Norway, Australia, the U.S., and Netherlands.
Early History, the Code of Euric, and the Holy Roman Empire
Germany did not become a unified modern state until 1871, but its regions and principalities played a central role in influencing Europe from its earliest history. Germanic tribes initially migrated from the Black Sea region around 500 BC to the Jutland peninsula on the Baltic Sea and then to other parts of the coast. Beginning in the first century BC, Germanic tribes migrated west to England and south to contemporary France, Italy, Germany, and Poland. After enduring centuries of attack and eventual conquest by Roman legions, Germanic tribes repelled Rome's imperial army and in AD 410, the Visigoths, led by Alaric, sacked Rome itself. During the fifth century AD, Euric, the king of the Visigoths, wrote down the oral tradition of Germanic laws into the Code of Euric, which influenced the development of European political systems through its manner of choosing successor kings by a grand council of electors, namely the leaders representing the many Germanic regions).
Under Charlemagne's rule (768–814), the Frankish Empire became the dominant Germanic tribe. It expanded its control north to Saxony, east to present-day Austria, and south to Lombardy (in Italy). Charlemagne’s empire was divided in three among his grandsons after the death of his son: the East Frankish Kingdom (present-day Germany and Austria); the West Frankish Kingdom (present-day France); and the Middle Kingdom, a loose confederation of Germanic and Italian lands and principalities. From the mid-1400s onward, these three territories formed the Holy Roman Empire of the German Nation. The empire's influence reached its height during the Crusades when military orders such as the Teutonic Knights arose in response to papal calls to restore Jerusalem and the Holy Land to Christendom following the Islamic conquests. After their defeat in the Crusades, the Teutonic Knights returned to conquer Prussia and then expanded east under papal orders as far as Estonia (see Country Study of Estonia). The Holy Roman Empire faded over time and formally ended in 1806 during the Napoleonic wars.
In 1517, Martin Luther’s Ninety-five Theses, which protested the widespread practice of Catholic clergy to sell indulgences (absolution for forgiven sins) and challenged the authority of the Pope, launched the Reformation, a continent-wide development of alternative Christian churches and sects generally known as Protestant (because their beliefs and practices protested against Church doctrine). This religious division had political consequences. The Germanic principalities and kingdoms divided into a largely Protestant (Lutheran) north and mostly Catholic south. The bloody Thirty Years' War (1618–48), which involved all the major European powers, was fought to prevent the Reformation’s spread to other parts of the Holy Roman Empire. The fighting, which was concentrated on German lands, resulted in the deaths of four million people from war, famine, and disease. It ended with the signing of the Treaty of Westphalia in 1648, which established the principle of freedom of religion within and between European states for the first time (see also Freedom of Religion).
Prussia and the Rise of the First German Empire
Over the next century, the Protestant Brandenburg-Prussia monarchy began to eclipse the Catholic Hapsburgs of the Austro-Hungarian Empire in military and economic power. Prussia took over Poland's western territories in the 1793 partitions of the Polish-Lithuanian Commonwealth, but its growing power in Central Europe was stemmed by Napoleon's victory over Prussia in the Battle of Jena in 1806. At the Congress of Vienna following Napoleon’s final defeat in 1815, the 39 German states decided to place a new German Confederation under Austro-Hungarian leadership. But after the 1848 revolutions, Prussia re-emerged as the dominant state within a gradually weakening German Confederation. After William I became King of Prussia in 1861, his prime minister, Otto von Bismarck, put together a new federation of 22 northern states under Prussian leadership. In 1871, Bismarck established the First German Empire (or Reich) and made himself chancellor.
Sculpture of Otto von Bismarck, the "Iron Chancellor"
World War I and the Weimar Republic
Under Bismarck, Germany emerged as a modern nation-state, propelled by rapid industrialization and a high level of militarization. But Germany's economic power and aggressive foreign policy brought it into conflict with other European states, which ultimately led to World War I. After four exhausting years of fighting on two fronts, East and West, Germany surrendered in 1918. The end of the war led to the establishment of Germany's first democratic constitution and government, led by the popular Social Democratic Party. But the new government was weakened by Communist rebellions and, more lastingly, by the Treaty of Versailles, which it was forced to sign in June 1919. The Treaty set harsh terms requiring Germany to cede disputed territories, to demilitarize and deindustrialize in key economic areas, and to pay large reparations. Germany's postwar period of democratic government, the Second Republic (known as the Weimar Republic), was marked by failed putsches, temporary occupation by France, hyperinflation, and ultimately economic depression with millions left unemployed.
The Rise of Hitler and the Third Reich
In this setting, a dictatorship emerged from a democracy. Two parties representing opposing totalitarian ideologies, the National Socialist (Nazi) Party led by Adolph Hitler and the Communist Party, gained the most seats in in the 1932 elections for the Reichstag (parliament). In early 1933, President Hindenburg asked Hitler, who had promised to reverse the national humiliation of Versailles, to form a government. Ten years earlier, Hitler had declared his vision of absolute power and of so-called “Aryan” racial domination in his political manifesto Mein Kamp. Once in power, he quickly moved to implement his vision. Soon after Hitler became chancellor, a fire destroyed the Reichstag building. When an unemployed Dutch communist admitted to setting the fire, Hitler claimed that it was a planned provocation of the Communist Party and arrested its leaders. Hindenburg, although with dubious authority, approved emergency powers for Hitler (the Reichstag Fire Decree). Then, on March 27, 1933, the Nazis arranged passage of the Enabling Act in the Reichstag, which gave Hitler power to govern without parliamentary approval.
The Enabling Act constituted a coup d’état. The two-thirds majority required for this drastic measure was achieved by banning the Communist Party, arresting parliament members, and physically preventing others from voting. From then on, Hitler rapidly and dramatically consolidated his power by combining the offices of president and chancellor, banning other opposition parties, carrying out purges of the civil service, judiciary, and security forces, and transforming the SS (Schutzstaffel), the Nazis’ paramilitary organization, into the dominant government security force overseeing all police agencies (including, later, the Gestapo). The Nazi regime carried out an unparalleled campaign of terror and repression within Germany, establishing concentration camps and filling them with tens of thousands of people. The Nazis targeted the entire Jewish community for repression — and ultimately extermination. As Hitler remilitarized Germany and reoccupied demilitarized territories, the Allied powers, especially Britain, adopted a policy of appeasement. The 1938 Munich Agreement allowed Germany to reoccupy the Sudetenland (a territory ceded by the Versailles Treaty to Czechoslovakia). Hitler, however, was just beginning. Having built the most powerful military on the continent, he set out to pursue his horrific design of world conquest and racial purification.
SS-Schutzstaffel rounding up prisoners during WWII
The Cataclysm of World War II
Hitler annexed Austria later in 1938, established a Tripartite Pact with other fascist powers (Italy and Japan), and signed a non-aggression Pact with the Soviet Union in 1939. The Pact allowed Hitler to invade western Poland on September 1, 1939, thus launching World War II, while giving the Soviet Union carte blanche to invade eastern Poland and other Eastern European territories. Within a year the Nazi army defeated France, occupied much of Western Europe and North Africa, and attacked Britain. Hitler broke his agreement with Stalin and ordered the invasion of the Soviet Union in June 1941. And in December 1941, Germany declared war on the United States as an ally of Japan following its attack on Pearl Harbor. After reaching Moscow in 1942–3, the Nazi army was repulsed on both the eastern and western fronts. By 1945, Nazi Germany was defeated and occupied by Allied and Soviet forces. The total number of lives lost in the European theater of WWII alone was unprecedented in human history. It is estimated that between 40 million and 60 million soldiers and civilians were killed overall, including in the Holocaust, the Nazi regime’s systematic murder of six million Jews (two-thirds of the European Jewish population). Approximately three million others, including Roma, Slavs, the disabled, and homosexuals, also were murdered by the Nazi regime and its supporters.
The Federal Republic of Germany (West Germany)
Following Germany's unconditional surrender on May 8, 1945, the Allied powers set the terms of post-war Europe at a meeting in Potsdam, Germany. Germany's eastern territories were ceded to Poland (whose own eastern territories had been annexed to the Soviet Union) and Germany was divided into four occupied zones to be administered by the Americans, British, French, and Soviets. The capital, Berlin, was similarly divided. In its drive to Germany, the Soviet Union had occupied most of Eastern Europe and effectively extended its border to eastern Germany. The Soviet Union's blockade of the western zones of Berlin in 1948 confirmed its intentions to permanently occupy the eastern zone and all of Berlin. In response, the Americans, British, and French decided to create a separate state out of their three zones, the Federal Republic of Germany. It was established on May 23, 1949 with the adoption of the Basic Law. The Soviet Union established the German Democratic Republic (East Germany) on October 7, 1949.
During the occupation, the Allies carried out a policy of de-Nazification, rebuilt Germany's economy, and re-established democratic institutions. Organizations such as the American Federation of Labor helped their German counterparts rebuild. The Christian Democratic Union (CDU), formed by members of pre-war democratic parties, won the country's first elections in 1949. Its chairman, Konrad Adenauer, who was imprisoned as part of the German resistance during the war, led CDU and coalition governments from 1949 to 1963. In building a broad consensus with the CDU’s political competitor, the Social Democratic Party, he is usually credited with overseeing the country’s economic recovery, its rebuilding of a democratic society, and establishing a balance of free market and social welfare policies. Adenauer also pushed a policy of European integration. In 1951, Germany joined France, Italy, and the Benelux countries in creating the European Coal and Steel Agreement, the precursor to the Common Market and European Union. In 1955, West Germany joined the North Atlantic Treaty Organization (NATO), cementing the country’s remarkable ten-year transformation from a hated military enemy to a Trans-Atlantic ally. Germany's recovery, aided by the Marshall Plan, propelled it to the world’s fourth largest economy. The Federal Republic of Germany’s fundamental change achieved a general climate of political freedom, a multi-party democratic system, stable transfers of political power, an independent judiciary, a federal system marked by separation of powers and decentralization, and a repudiation of its Nazi past.
Plenary hall in the German Federal Parliament building.
The German Democratic Republic (East Germany)
By contrast, in Germany’s eastern occupied zone, the Soviet Union established a communist dictatorship that was incorporated into a new system of satellite countries that in 1955 formed the Warsaw Pact. Early in the Soviet occupation, the prewar Social Democratic Party was forced to merge with the Communist Party to form the Socialist Unity Party (SED). With the formal establishment of the German Democratic Republic (GDR) in 1949, a Soviet-style constitution was imposed in which all power was concentrated in the SED. East Germany was among the most closed and repressive of the Soviet bloc countries. Political opponents were imprisoned and all institutions were placed under the control of the secret police, the Stasi (Staatssicherheit). By the end of the period of Communist rule, the Stasi had nearly 100,000 employees and as many as two million collaborators who spied on the population. From the West, the most obvious sign of the GDR's repressive system was its shooting of people who tried to escape across the “Iron Curtain” fence that ran the length of the German border. (Overall, as many as 1,200 people were killed.) To prevent escapes from its capital, the GDR constructed the Berlin Wall in 1961, perhaps the most infamous symbol of the Cold War. Following the opening of Hungary's border with Austria in August 1989, thousands of East German citizens flooded into Hungary in order to emigrate to the West. This action sparked massive protests in cities across all of East Germany, a popular uprising that eventually led to the fall of the Berlin Wall on November 9, 1989. The communist regime collapsed soon thereafter. Following these dramatic events, negotiations between the two German governments for reunification proceeded quickly. On October 3, 1990, East Germany was formally incorporated into the Federal Republic of Germany.
The Rule of Law
For much of German history, like that of Europe generally, the rule of law existed within the framework of authoritarian governments and hierarchical societies dominated by land-owning aristocracies. The rule of law that had evolved within its confederal states and in the First and Second Republics was thoroughly destroyed in the Third Reich. The Nazi regime under Adolph Hitler established a state of lawlessness ruled by violence and terror and imposed by the vicious repressive agencies of Nazi control, the SS and Gestapo. Postwar Germany offers a clear contrast in terms of governance and the rule of law. In East Germany, the Soviet Union established a communist dictatorship that also deprived citizens of the rule of law in nearly all respects and kept the society under control through pervasive repression and constant surveillance. The Federal Republic of Germany, on the other hand, created a stable democracy with a firm foundation for rule of law that protected the rights of citizens. In the reunification of East and West Germany in 1990, the constitution of the Federal Republic was adopted and accepted by East Germans.
The united Federal Republic of Germany is governed by its Basic Law, the constitution that was originally adopted on May 23, 1949. Although American influence is illustrated in its well-defined federal structure, the political and legal system reflects Germany's own history and most importantly the rejection of the barbarism of Nazi rule by the Federal Republic’s post-war political parties and other representative institutions within German society, like the trade union movement, all of whose leaders resisted Nazism.
The most important principle of the Basic Law is stated in Article 1. It states:
Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
In the Weimar Republic, human rights were considered only "state objectives" and the president had the authority to override respect for human rights by granting emergency powers to the chancellor. Article 1 of the Basic Law firmly roots all state institutions in the protection of human rights. Article 79, which outlines how the constitution may be amended, makes human rights inviolable to prevent any legal maneuvering that might temporarily suspend human rights in emergency situations.
Germany, in its Basic Law, firmly roots all state institutions in the protection of human rights.
The Basic Law establishes a parliamentary system of government with diffusion of powers through a federal system of states (lander). The president has largely ceremonial duties, such as the formal naming of the cabinet. There is a two-chamber parliament consisting of the Bundestag (Federal Assembly), whose members are elected in a mixed-proportional system in national elections held every four years, and a Bundesrat (Federal Council) made up of representatives of the lander or federal states, now 16 in number after reunification The Federal Chancellor is the head of government and elected by secret ballot by a majority of all members of the Bundestag. The Chancellor names all other members of the cabinet.
The Basic Law also establishes an independent judiciary consisting of a Federal Constitutional Court; a Federal Court of Justice (Bundesgerichtshof); and administrative, labor, and social courts. The Federal Constitutional Court, whose members are elected by both the Budestag and Bundesrat to 12-year terms, is guardian of the Basic Law and rules on the constitutionality of laws and actions by state bodies. Although much of Germany's civil and criminal law remains rooted in Roman tradition, basic due process rights under the Basic Law are similar to those in the U.S. Constitution. During a rise in left-wing extremist violence in the 1960s and 1970s, the government adopted several exceptions to due process rights, but these were limited and time proved that there was not much need for “special measures.” These violent groups gained little adherence and ultimately dissolved after several of their members were arrested.
The post-war Nuremberg Trials, a related proceeding at Dachau, and the International Military Tribunal for the Far East (the Tokyo war crimes trial) established a principle of international accountability for crimes against humanity. The Nuremberg Trials were held from 1945 to 1949 and included the Major War Criminals Trial of 24 leading Nazi figures, as well as trials of 185 SS and army officers, doctors, judges, lawyers, and others complicit in war crimes, crimes against humanity and the Holocaust. The Dachua trials convicted 1,419 persons, mostly those engaged in running concentration and death camps, on similar charges. These open trials established an important foundation for public acknowledgment of the crimes of the Nazis, the complicity of German society in those crimes, and Germany's responsibility for the Third Reich, including the need for reparations to victims.
Germany bans the advocacy of Nazism and the display of Nazi insignia or paraphernalia and forbids the denial of Nazi crimes, most importantly the Holocaust. While such restrictions are challenged by free speech advocates as counterproductive and overly restrictive, they are considered an essential part of the postwar political consensus in Germany to never again allow totalitarianism to take hold.
Since reunification, political power has alternated between right coalition, left coalition, and unity governments. In the 2013 federal elections, the Christian Democrats and Christian Social Union (CDU/CSU), led by incumbent Chancellor Angela Merkel, continued its recent dominance, gaining 41.5 percent of the vote and 311 of 630 allotted seats. Lacking a majority, she formed a “grand coalition” with the Social Democratic Party (SPD), which won 26 percent and 193 seats. The opposition is formed by the Alliance ‘90/Greens and Left Party, a fusion of the post-communist party from East Germany and a splinter SPD party, which each gained about 8.5 percent (63 and 64 seats, respectively). The liberal Free Democrats fell below the 5 percent threshold for the first time since 1948. In 2012, Joachim Gauck, a former pastor who oversaw the opening of the Stasi files after the fall of the East German regime, was elected president by a consensus of all parties.
The largest issue facing Germany today is the refugee crisis. More than 1.25 million refugees entered Europe in 2014–15 from war-torn Middle East and Northern Africa, the largest refugee crisis in post-war European history. Most of the refugees, facing hostility elsewhere, tried to get to Germany after Prime Minister Merkel said the country would welcome them. Many Germans volunteered to help the newcomers but as the number grew to 1 million people, Merkel faced increasing domestic opposition for her stance as well as protests from Eastern European leaders who blamed Germany for encouraging the refugee flow. At the end of 2015, she sought to stem the number of refugees by working with the EU to stop dangerous crossings of the Mediterranean and Aegean Seas and also gave $1 billion to President Erdogan to help keep refugees in Turkey (up to 4 million people have fled their homes in Syria as a result of the civil war there). Extremist groups have used the situation to organize protests and violent attacks directed at Muslims and mosques. An incident over New Years’ Eve in Cologne, where packs of men, reportedly refugees, attacked women, provoked greater fears of refugees and reduced support for Merkel. (It later was reported that other refugees acted to protect the women being attacked.) Another concern, however, is extremism among Muslim refugees. In September 2014, the Interior Minister announced a ban on any support for the Islamic State and estimated that there were around 550 supporters of IS in Germany.
Already, there were concerns about the rise of the National Democratic Party or NDP, an extremist party that has clear Nazi sympathies. Despite a ban on any continuation of the Nazi party, the NDP has been allowed to run in elections. After merging with another extremist party in 2011, it cleared the 5 percent threshold for representation in the conservative Mecklenburg-Vorpommern region. The standing of the NDP and other groups, like Alternative for Germany and Patriotic Europeans Against the Islamization of the West (PEGIDA), appears to be growing since the onset of the refugee crisis and made significant gains in the recent state elections at the expense of the CDU. Alternative for Germany recently won seats in regional elections and is incrasing in popularity in recent polls leading up to the 2017 parliamentary elections..
In fact, although it is nearly 70 years since the end of World War II, reminders of Germany’s Nazi past and its rule of lawlessness are frequent. In January 2014, museum officials in Bavaria found a guillotine in storage that had been used to murder hundreds of opponents of Hitler, including 14 members of the White Rose, a student resistance group that distributed fliers informing Germans of war atrocities and persecution of dissidents and urged fellow students to rebel. The discovery brought to light the immense bravery of the group but also renewed public debate about German society’s knowledge of and complicity in Nazi crimes. In another reminder, in the fall of 2013, German authorities seized 1,280 pieces of art stolen by the Nazis during the Holocaust that were still being hoarded by the son of a Nazi-era art dealer. The 81-year-old son could not be prosecuted due to a 30-year statute of limitations on stolen property. His death in the spring of 2014, however, allowed the German government to return the art pieces to their owners and descendants upon proof of provenance. It is the largest recovery of stolen art since the war and restores an enormous cache of masterpieces to Europe’s cultural heritage.
New academic and human rights focus is being placed on the mass killings of Jews outside death camps, at a large number of “informal” extermination sites that have been identified in the last few years. At a conference in Krakow organized around International Holocaust Remembrance Day on January 27, 2014 (the day marks the liberation of Auschwitz by Soviet Red Army troops), scholars put the number of Jews killed outside the camps at 2 million. The findings have also brought to light the 1.3 to 1.5 million non-Jews estimated to have been killed at extermination sites.
In bringing perpetrators of Nazi crimes to justice, the case of John Demjanjuk has had particular significance. After lengthy investigation and proceedings, he was extradited from the US to face trial in 2011 on charges of facilitating the murder 27,900 Jews as a camp guard at the Nazi concentration camp in Sobibor, Poland. He was convicted but died the next year at age 91 while on release pending appeal. The case, however, set a precedent for finding guilt based on his service at concentration and extermination camps and prompted German prosecutors to revive efforts at finding camp guards and others who served in them (see New York Times article in Resources). One case brought before a court was of Oskar Gröning, a 94-year old former SS officer at Auschwitz-Birkenau, the largest death camp. He was found guilty of complicity in the murder of 400,000 Hungarian Jews who were brought to the camp in 1944. The case brought to public view excruciating details of the workings of the death camp and the roles played by ordinary officers like Gröning, who admitted his complicity. In the ruling sentencing the 94-year old to 4 years’ imprisonment, the judge, Franz Kompisch, rued the limited sentence and indicted the German legal system for allowing many thousands of officers complicit in mass murder to escape justice. One such perpetrator was Erich Priebke, an “unrepentant organizer” of the Ardeatine Caves massacre in Italy — whose story was published in the Economist (see Resources). Priebke, even after being found guilty by an Italian court, had his sentence of life imprisonment commuted to “comfortable house arrest,” in which he lived 12 more years. Still, German prosecutors are continuing to bring new cases based on the Demjanjuk precedent. One was opened in February 2016 of 93-year-old Reinhold Hanning, an ex-SS sergeant who served at Auschwitz, charged with complicity in 170,000 murders committed during his time at the camp in 1943.
All of these issues continue to highlight the importance of the rule of law, its complexity when seeking justice, and the great dangers to society — and the world — when it does not exist.