Between Law and Criminal Orders; or, On the Problem of Romanian Perpetrators’ Compliance

This paper explores the ways in which Romanian law impacted actions of Romanian perpetrators of the Holocaust. While the study of Romanian perpetrators made considerable progress in recent years, the problem of the illegality of their murderous actions was mostly neglected. This neglect perhaps stems from the fact that during post-World War II trials of mid- and lower-level perpetrators, Romanian prosecutors and judges applied retrospectively post-war laws issued by the communist authorities while ignoring the laws in force at the time of the crimes. However, in the 1930s, Romanian Penal and Military Justice Codes, following legal developments in France, were revised to eliminate legal protection for officials who had carried out criminal orders. Criminalization of compliance with criminal orders was retained in the new editions of the Codes released during the War.

Ensuring compliance with evidently illegal orders was not unproblematic in view of the suppression, in January 1941, of the only fascist type party possessing a corps of fanatical para-militaries committed to genocidal ideology and no stranger to criminal activity. Most of the murderous measures against Jews in Romania-controlled territory were carried out in 1941-1942 by the agents of the Romanian state sworn to uphold existing laws.

On the basis of wide range of sources, the paper argues that many Romanian perpetrators were aware of their legal liability for carrying out criminal orders. The paper reveals various stratagems employed by the officials to deal with this pressure and protect themselves from possible legal prosecution. The history of official abuse and political violence in interwar Romania discouraged many from taking explicit stance against government-ordered murder. As the war dragged on, officials’ anxieties increased thus contributing to slackening of the policy of persecution.