German Word of the Week: Reichsbürger

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Before committing a racist mass-shooting in Hanau, Germany, the schizophrenic killer, Tobias R., had sent a petition (g) to the German Federal Prosecutor’s Office asking them to initiate formal legal proceedings against the shadowy “intelligence service” which was tracking, stealing, and broadcasting his thoughts. This raised the issue of how, and whether, authorities should respond to official petitions and letters they receive which strongly hint at the sender’s mental illness — especially when the sender, like Tobias R., was a gun owner. People who work for German courts and government agencies soon protested, noting that they get literally hundreds of crazy letters a week, mainly from Reichsbürger (citizen of the Reich).

Which raises the question: What is a Reichsbürger?

A Reichsbürger is a German who believes the German Reich never stopped existing (g). They believe the Reich, as recognized by the Treaty of Versailles, and in its dimensions from 1937, still exists as a legal entity. They also hold that the Federal Republic of Germany, as proclaimed in 1949 with the passage of the German Basic Law (constitution), has no legitimacy. Therefore they refuse to pay taxes to it or recognize its laws. Many Reichsbürger have drawn up their own documents and even passports, which they show when asked for ID. There’s a massive overlap between Reichsbürger and right-wing groups, and Reichsbürger have killed (g) German police. Reichsbürger groups are closely monitored by the government because of their propensity for violence.

So do the Reichsbürger have any support for their cockamamie idea? Surprisingly, the answer is “sort of”. Their main support is a passage from a decision the German Federal Constitutional Court from 31 July 1973 which states, in part (g):

The German Basic Law … assumes that the German Reich survived the collapse of 1945 and did not disappear either as a result of the capitulation or the exercise of foreign authority in German by the Allied occupying powers… The German Reich continues to exist, continues to have legal capacity, but is not capable of acting on its own because, as a whole, it lacks organization and lacks institutional organs…. Responsibility for “Germany as a whole” is still shared with the four powers. The creation of the Federal Republic did not create a new West German state, but rather simply re-organized a part of the existing German state.

Now, of course, this decision was issued by the German Federal Constitutional Court, which the Reichsbürger don’t acknowledge as legitimate. But this irony is apparently lost on them.

But what is the justification for the Court’s curious wording? Part of the answer is the Court’s desire preserve the legal basis for the reunification of Germany. The passage quoted above came from the Federal Constitutional Court’s decision on the Grundlagenvertrag, the “basic treaty” on relations between West and East Germany, which was adopted in 1972. In the treaty, West Germany gave up its claim to be the only legal representative of “Germany” as a whole, in return for concessions from East Germany. The treaty led to the diplomatic recognition of West and East Germany as independent states. The countries refused to establish official embassies, but they did establish “permanent representatives” in each others’ capital cities, paving the way for better diplomatic and trade ties.

The treaty, part of liberal Chancellor Willy Brandt’s Ostpolitik, was controversial among German conservatives, since the original West German constitution required all organs of the West German government to continuously strive toward re-unification (g) of West and East Germany. According to these critics, recognizing East Germany went in the opposite direction, since it tended to reinforce German separation, and therefore violated the constitution. From 1955 to 1970, the West German government pursued the Hallstein Doctrine, in which it argued that the West German state, not East Germany, was the only legitimate representative of the interests of the German people. The Basic Treaty represented the formal repudiation of the Hallstein Doctrine; now West Germany would not protest when other nations granted East Germany diplomatic recognition (and vice-versa).

In fact, the West German constitution itself didn’t even refer to itself as a constitution for exactly this reason. The drafters of the West German post-war constitution elected not to call it a constitution, since it would be possible for the German people to ratify a constitution only when all of them could vote freely and equally on the document, which was impossible as long as there was one part of Germany in which free and fair elections were impossible. Thus, the constitution called itself merely a “Basic Law” (Grundgesetz), and specified in its own preamble that it was intended merely as a “transitional” document.

The Federal Constitutional Court upheld the Basic Treaty of 1972, holding that it did not violate the Basic Law’s mandate to pursue German re-unification. However, to satisfy conservatives, the Court repeatedly stressed that the Basic Law’s focus on re-unification remained as valid as ever. The passage the Reichsbürger rely on is part of the Court’s attempt to split the baby: The Court is stressing that although West Germany has now taken over the functions of the previous German state entity, the Reich, this doesn’t mean that the German people, as a whole, have given up their claims to territory formerly included in the Reich. To put it more simply, the Court is saying that even though Germany was then currently split into two sovereign entities (West and East), the underlying aspiration of the German people as a whole was to exercise unified control over all of the territory traditionally considered to be part of Germany.

So the Court’s language was intended as a compromise: On the one hand, the Court recognized that the government of West Germany could recognize and trade with East Germany without violating the Basic Law’s command to pursue reunification. On the other hand, though, the Court interpreted the treaty as not giving up on West Germany’s claim to be the ultimate true representative of the German people. Yet there is also an interesting sub-text to the treaty, and the court decision. Throughout the post-war years, West Germany had been bedeviled by the question of war reparations. The Third Reich had caused unimaginable human suffering and material losses across Europe, especially in countries which were parts of the former Eastern Bloc. But should West Germany bear the cost of reparations alone, or should East Germany bear some of the blame? East Germany, for its part, claimed that since it had adopted an “anti-fascist” mode of government and was now allied with Eastern European countries in socialist brotherhood, it was no longer obliged to pay reparations to those outside East Germany.

A book (g) sums up the complex situation:

After the Federal Republic gave up its claim to be the sole representative of the German people in the 1972 German-German Basic Treaty, it became even more firmly committed to the position that it was no longer solely responsible for the obligations of the “Third Reich”, and thus forwarded demands from compensation from Eastern Bloc states to East Germany. West Germany behaved ambivalently: On the one hand, it condemned to the rest of the world East Germany’s denial of reparations to Jews living outside East Germany. On the other hand, the West German finance ministry secretly approved East Germany’s position, since otherwise other East Bloc countries could be encouraged to file claims for reparations from West Germany.

The part (g) of the Federal Constitutional Court’s opinion referring to the continued existence of the German Reich was also an attempt to avoid saddling only West Germany with the responsibility for reparations payments. The Court wanted to emphasize that West Germany was not the official “legal successor” to the German Reich, since that would imply West Germany would “step into the shoes” of the Reich, as lawyers say — i.e., that West Germany would now be automatically 100% responsible for all legal obligations incurred by the German Reich. So the Court reasoned that the German Reich — including parts which were now East Germany — still existed, but was no longer “capable of acting”. This meant, in turn, that neither of the two new German states would be automatically liable for the legal obligations of the German Reich. It doesn’t make all that much sense, but legal fictions rarely do.

So this is the story of Reichsbürger. They’ve misinterpreted a few passages of highly complex legal decisions and come to bizarre conclusions which serve their ideological obsessions. Something that happens not infrequently in modern Western societies.

[Cross-posted to my German Law blog].