In the debate between Europe and the United States over the death penalty, no country is more vocal than Germany. German media regularly decry executions in Texas. A recent U.S. Supreme Court case concerning the rights, under international law, of foreign defendants in capital cases grew in part out of a German lawsuit before the World Court on behalf of two German citizens on death row in Arizona. (The Supreme Court dismissed the case on May 23 for technical reasons.) German objections to capital punishment slowed Berlin's cooperation with the U.S. prosecution of alleged al Qaeda operative Zacarias Moussaoui, who faces the possibility of the death penalty -- though the two countries eventually worked out an agreement.
Contrasting their nation's policy with that of the Americans, Germans point proudly to Article 102 of their Basic Law, adopted in 1949. It reads, simply: "The death penalty is abolished." They often say that this 56-year-old provision shows how thoroughly the postwar Federal Republic has learned -- and applied -- the lessons of Nazi state-sponsored killing. (Communist East Germany kept the death penalty until 1987.)
But the actual history of the German death penalty ban casts this claim in a different light. Article 102 was in fact the brainchild of a right-wing politician who sympathized with convicted Nazi war criminals -- and sought to prevent their execution by British and American occupation authorities. Far from intending to repudiate the barbarism of Hitler, the author of Article 102 wanted to make a statement about the supposed excesses of Allied victors' justice.
The International War Crimes Tribunal at Nuremberg sentenced 11 top Nazis to death, all of whom were hanged in November 1946 except for Hermann Goering, who committed suicide. The Western Allies hanged or shot dozens of lesser-known war criminals -- including 284 at a U.S. Army prison in Landsberg between November 1945 and June 1951. Though SS men who had supervised death camps and massacred Jews were among the condemned, many Germans bristled at victors' justice. "The longer the executions went on," reports a town history on the Landsberg Civic Association's Web site, "the louder became the voices demanding an end to them. There was a broad political alliance in favor of clemency efforts."
Meanwhile, there was little opposition in West Germany to capital punishment for ordinary criminals. A poll by the Allensbach Institute in February 1949 showed that 77 percent of West Germany's population favored it. The largest left-wing party, the Social Democrats, had a long anti-death-penalty tradition, but, given the political climate, it did not campaign on it.
Germans began the formal process of writing the new Basic Law in August 1948. Initial drafts submitted to a 65-member Parliamentary Council contemplated retention of capital punishment. It was not until a meeting of a special subcommittee on Dec. 6 that a single delegate, Hans-Christoph Seebohm, surprised everyone by proposing to get rid of the death penalty. Seebohm, who ran various industrial enterprises under the Nazis, led the tiny, far-right German Party -- which also advocated using "German Reich" instead of "Federal Republic."
Addressing the council, Seebohm equated executions "in the period before 1945 and in the period since 1945." As British historian Richard J. Evans notes in "Rituals of Retribution: Capital Punishment in Germany, 1600-1987," the rightist politician was "thinking above all of the execution of war criminals, to which he and his party were bitterly opposed. Preventing Nazi war criminals from being sentenced to death would certainly help the German Party in its search for voters on the far right."
Both Social Democrats and Christian Democrats initially rejected the Seebohm initiative but gradually began to see its advantages. To the Social Democrats, it offered right-wing political cover for an idea they dared not pursue on their own. And for more than half of the Christian Democrat delegates, Evans reports, the political advantages of trying to shield Nazi war criminals trumped their belief in the death penalty for ordinary murder cases. Social Democratic arguments about turning the page on Nazism, belatedly made, were not decisive. Rather, writes Evans, "only the hope of being able to save Nazi criminals from the gallows . . . persuaded conservative deputies from the German Party and the Christian Democrats to cast their votes in favor of abolition in sufficient numbers to secure its anchorage in the Basic Law. Had it merely been the question of common homicide that was at issue, the vote would never have been passed."
After the Basic Law went into effect on May 24, 1949, Germans bombarded U.S. High Commissioner John J. McCloy with pleas for clemency based on Article 102. Among those joining what Vanderbilt University historian Thomas A. Schwartz calls "this intense and emotional campaign" were both Christian Democratic Chancellor Konrad Adenauer and Social Democratic leader Kurt Schumacher. In a Jan. 31, 1951, final report on U.S.-held war criminals, McCloy said he was not bound by the provision, but he still commuted the death sentences of 10 of the last 15 condemned war criminals in Landsberg. The final hanging took place on June 7, 1951.
The death penalty for common murderers, as opposed to war criminals, remained popular in West Germany. Polls showed 71 percent in favor as late as 1960. Christian Democrats tried repeatedly to reinstate it, but failed due to lack of support from the left. (The Basic Law could be changed only by a two-thirds vote of parliament.) Later, amid more open discussion of Nazism and the Holocaust, opposition to the death penalty did become truly popular -- and Article 102 acquired its contemporary symbolism.
When U.S. troops captured Saddam Hussein in December 2003, Germany's Social Democratic chancellor, Gerhard Schroeder, had wide backing in declaring: "I am against the death penalty, and that goes for everyone -- even a dictator, like Saddam Hussein, who treated other people in the cruelest way." Schroeder was remaining true to his society's postwar traditions -- truer, perhaps, than he realized.
The writer covers the U.S. Supreme Court for The Post.