How to Try a Nazi
If those seeking Holocaust justice applaud the recent decision of German prosecutors to file charges against 30 alleged Auschwitz guards, they have John Demjanjuk to thank. Unwittingly, the Ukrainian-born, German POW and death camp guard reversed over 140 years of German jurisprudence. His 2009-11 trial and conviction established a yet-to-be-challenged legal precedent that prosecutors will now rely on in trying the alleged Auschwitz guards.
In 1958, 13 years after the war ended, Germany had created and funded a special office to prosecute Nazi war criminals. Over the years, that office conducted more than 100,000 investigations and its courts convicted more than 6,000 war criminals. But it hasn’t tried a single Nazi or Nazi collaborator for nearly 20 years. The German Nazi war crimes office appeared to be doing nothing but spending money and blowing smoke.
Defenders of Germany’s track record on war crimes argue that at least it had the courage to face the crimes of its former leaders. What about the rest of world, especially the United States and Great Britain, which had been so eager to try and convict Nazi war criminals at Nuremberg? How many public war crimes trials had those countries initiated to prosecute and sentence their own war criminals? And how dare the U.S. and Great Britain criticize Germany when they had hired and protected thousands of alleged Nazi war criminals and their collaborators during the Cold War?
The picture wasn’t quite that rosy. The German Nazi trials of the 1950s, ’60s, and ’70s were riddled with acquittals and short sentences that amounted to a rap on the knuckles with a feather. True, approximately 180 Nazis got the maximum sentence—life in prison—allowable under German law. However, several thousand guards at concentration, labor, and death camps, Einsatzkommandos who belonged to roving death squads, and T-4 Euthanasia workers were sentenced to only one to three years in prison. Hundreds more, including Otto Horn, who had supervised the burying of gassed corpses at Treblinka, and Karl Streibel, commandant of the Trawniki camp that trained death camp guards in eastern Poland, were acquitted in a liberal—some would say scandalous—interpretation of the German criminal code.
Critics of German war crimes trials like Rebecca Whittmann point out that the majority of the judges and attorneys involved in the early trials had served the Third Reich during the war. Most had actively participated in the Reich’s criminal justice system and had been former Nazis who provided the legal rationale for the post-Nuremberg war crimes trials, sat on the benches, pronounced judgment, determined sentences, and provided criminal defenses.
Furthermore, Germany also clung fast to its 1871 criminal code, which did not have statutes covering war crimes or crimes against humanity. Other countries like Israel and France revised their post-war penal codes in order to deal with the unique legal problems inherent in trying defendants for such war crimes.
There was a self-serving reason for German jurists’ steadfast refusal to update their penal code. Without an update, Nazi war criminals had to be tried for regular murder, which excluded “desk murderers” (Schreibtischtäter) like themselves. As Whittmann aptly put it: “[They] were loath to institute laws that could hold them accountable as lawmakers during the Nazi period.”
Who then could be tried as a war criminal under the 1871 penal code? Only exceptionally sadistic men and women, usually camp guards like Hermine Braunsteiner, who received a life sentence for her brutal murder of women and children. As a result, it was almost impossible to convict the vast majority of Nazi criminals. Indeed, under the 1871 statutes, a prosecutor would have to prove beyond a reasonable doubt that the accused both intended to kill someone and was motivated to kill someone. If he just followed orders, he did not necessarily have intent or motive.
Whittmann explains that in interpreting that definition of regular murder, German judges and jurists crafted two self-serving guiding principles. The first, Befehlsnotstand, protected a defendant from the charge of murder if he obeyed a superior officer’s command to kill because disobeying it would have endangered his own life. A favorite defense argument, Befehlsnotstand was responsible for most post-Nuremberg acquittals. The second defining principle was Exzess. In order to be convicted of wartime murder, the defendant had to be an Exzesstäter—someone who had committed excessive acts of cruelty in killing. This would include someone like Klaus Barbie, the Butcher of Lyon.
Ultimately, the postwar German courts used the 1871 code to excuse abettors who had participated in a killing process but had not directly committed murder. It also freed those who killed on order without committing excessive acts of cruelty.
A new generation of German Nazi war crimes prosecutors like Ulrich Maas and Thomas Walther were not happy working within the narrow confines of this outmoded, protective, and unfair code.
“We criminal prosecutors have sometimes felt like road workers who are handed a screwdriver instead of a jackhammer,” Maas complained to Spiegel Online. He went on to compare prosecuting low-level Nazi criminals to trying shoplifters. “You feel a certain queasiness…The big economic fraudsters manage to get away scot-free. But the alternative cannot be to let the shoplifter go, too.”
Government prosecutors in the Demjanjuk case signaled to the Munich Regional Court that they were willing to reverse the historical legal trend when they charged the defendant with assisting in the murder of 29,060 Jews at Sobibor. These charges obviously went beyond the definition of regular murder in the 1871 German penal code that was still in use.
The panel of seven judges in the Demjanjuk trial—four legal professionals and three lay people—were much younger than their predecessors, and they were born after the war. Would they set a precedent and redefine the law because they viewed it as legally unsound? Would they commit an act of courage that would repudiate 60 years of German war crimes decisions? Or would they duck their responsibility to right what the rest of the world viewed as a terrible wrong?
The judges convicted John Demjanjuk, setting the legal stage for Germany’s recent decision to prosecute the 30 alleged Auschwitz guards. Then, taking into consideration that he had already spent eight years in American and Israeli jails, they sentenced Demjanjuk to five years in prison.
In the end, the Demjanjuk decision turned out to be a bitter irony both for him and Holocaust justice. In l966, a German court in Hagen had acquitted four of Demjanjuk’s SS superiors at Sobibor, even though they supervised the killing process. And because Demjanjuk died before his final appeal was heard, he is technically innocent under German law and will have no German criminal record.
The prosecutors who plan to try the alleged Auschwitz guards for aiding and abetting in the death of prisoners understand the obstacles they face. The evidence against the alleged guards is old or difficult to verify. And the accused are now, or soon will be, in their 90s. Like Demjanjuk before them, it is unlikely that any of these defendants will live through their trials and appeals. If so, that’s the final irony. The precedent Demjanjuk set will be buried in the graveyard of legal limbo.