Transitional Justice and the Rule of Law: Tainted Judges and Accountability for Nazi Crimes in West Germany

Following transitions from authoritarianism, newly democratic governments confront the challenge of dealing with individuals who served the former regime. A prominent argument in the transitional justice literature holds that it is best not to exclude such individuals and to take advantage of their expertise in rebuilding a democratic system. A critical question in this context is whether former collaborators will act in ways that are sufficiently similar to untainted officials. We examine this question by focusing on judges with ties to the Nazi regime in the West German judiciary. We demonstrate that accused Nazi criminals who were charged in courts staffed with a greater proportion of tainted judges had substantially higher odds of escaping conviction. We also show that the appeals process was not able to eliminate this bias. These findings have direct implications for the trade-offs involved in retaining individuals with ties to an authoritarian regime and the connection between transitional justice and the rule of law.

Duke Scholars

Author Georg Vanberg Political Science