German prosecutors are currently looking in to pressing charges against several men believed to have been accomplices to murder at Auschwitz. Some in Germany are asking if justice can still be served almost 70 years after the war.
It might provide some with a sense of satisfaction, but it will likely be small and it comes very late. Decades after the end of World War II, public prosecutors in Stuttgart, Frankfurt and Dortmund have opened investigations into nine elderly men alleged to have been accomplices to murder at Auschwitz.
The legal proceedings are still in the early stages and the men haven't been formally charged yet. Given the advanced age of the men and the potential charges, it is at the very least striking that judges ordered the arrest of three suspects in Baden-Württemberg, who are now being detained in prison hospitals. In these cases, the danger of their committing additional crimes can be ruled out. Furthermore, they hardly represent a flight risk and aren't likely to suppress evidence.
The precise details of their cases vary, but investigators' intentions remain the same: They want to pursue charges and try the men for crimes they purportedly committed as young men.
Some critics of the proceedings are saying enough is enough. The war ended 70 years ago, these men are frail and in some cases even suffer from dementia. They have a few years left to live at best. These voices argue they should be left alone and that public prosecutors should be dealing with more current problems.
"I can understand in some cases that people don't think these procedures are fair," said Kurt Schrimm, head of the special prosecutors' office in Ludwigsburg that focuses on German war crimes committed during World War II. Many, he says, "consider our work to be anachronistic." But, he adds, he has been getting many messages of support.
From a legal perspective, there are two arguments to counter the skeptics. Under German criminal law, there is no maximum age limit for trying people. In addition, murder is not a crime that is subject to the statute of limitations. Public prosecutors are required to pursue such suspicions and have no allowance for discretion.
The moral argument is formulated by Andreas Brendel, who has headed the central Nazi war crimes investigation unit in Dortmund since 1995. He has managed dozens of cases like these, including a few pertaining to the extermination camps. He is also responsible for one of the current cases. "We have an obligation to the families of the victims and the victims themselves to pursue this," he said. "That's indisputable. It doesn't matter to me whether the accused is 25 or 92. Do people honestly think we shouldn't pursue people who may have been part of the Nazi machinery?"
Schrimm also addresses the skeptics. "Are we supposed to abstain from prosecution now just because we weren't able to pursue them in the past?" he asked. He cites an example from one case in which the lists of transports to Auschwitz were the decisive pieces of evidence. "They included six-month old infants as well as elderly people," Schrimm said. "The perpetrators at the time had absolutely no compassion, and it is fair to ask whether they themselves deserve any pity today."
Must Individual Guilt Be Proven?
In cases where these investigations turn into charges and go to trial, it isn't uncommon for prosecutors to lose. In some cases, the trial is suspended and the charges dropped, as in the case of former SS member Siert B., who was acquitted by a court in Hagen in January. Prosecutors believe he murdered a Dutch resistance fighter in 1944, but the judges acquitted him citing a lack of evidence. In others, the defendant dies before a verdict can be handed down, as happened in the case of John Demjanjuk. He died in March 2012, before Germany's Federal Court of Justice could make a final ruling in his appeal against aconviction on charges of being an accessory to murder in 28,000 deaths.
The Demjanjuk case is noteworthy nevertheless because it marked a turning point. Although prosecutors could not prove direct involvement, a Munich regional court convicted Demjanjuk because it concluded that every guard at the Sobibór extermination camp performed duties that made them accessories to murder.
Previously, individual guilt had been seen as a necessity for any conviction. That, at least was the perception of the legal community following a 1969 ruling by the Federal Court of Justice in which the conviction of SS concentration camp dentist Willi Schatz was overturned. But the Federal Court of Justice has also reached other verdicts that open the door to holding guards culpable. Thousands of cases may have gone unpursued because of the conservative legal approach of the special prosecutor's office.
Given the extreme difficulty of proving individual guilt decades later, many proceedings were dropped. But if the legal arguments made by the Munich regional court in the Demjanjuk conviction were to be applied to the other cases, there might be new prospects for obtaining convictions.
'Our Work Is Not Political'
Currently, files are being reviewed in a number of investigations into suspected Nazi criminals that were closed by prosecutors because they felt there was little chance of a conviction.
In some instances, investigators were unaware of potentially incriminating material. "I didn't even know there were still perpetrator lists before the central Nazi war crimes investigation unit turned material over to me," said Brendel. "The same applies to other public prosecutors. One can certainly debate whether or not someone should have taken a closer look at these lists 25 or 30 years ago."
Investigations into Nazi crimes, to be sure, got off to a slow start in postwar Germany. Until 1950, the occupying Allies took prosecution of Nazi crimes in their own hands. After that, "there was an assumption that the matter would be settled within a matter of years," he said, because the statute of limitations for murder at the time was 20 years, meaning the Nazi crimes would have had to be tried by 1965. Later, the statute of limitations was extended to 30 years before being eliminated altogether.
There are also cases that only came to light decades later. In 1997, Schrimm became involved in a Nazi crimes investigation as a public prosecutor. The tip-off came in the form of a postcard that included information about "a crime that no one knows about yet." The perpetrator was ultimately prosecuted more than 50 years after the end of the war.
Schrimm dismisses the oft repeated assertion that the German justice system closed its eyes to suspicions, consciously delayed proceedings or even ignored cases. "It's nonsense to say the political will was lacking," he said. The German Justice Ministry states that there have been 106,000 legal proceedings into suspected Nazi crimes. Some estimates even go as high as 170,000. "You really can't say that the justice system was sleeping on the job," said Schrimm. He also defends against the insinuation that the proceedings have been motivated by any set agenda. "Our work is not political," he said. "I wouldn't like it if I were described as the top Nazi hunter. We don't pursue Nazis, we pursue murderers."
In contrast to the 1950s, today we know there will soon be an end to the proceedings against suspected Nazi war criminals; the last living perpetrators will soon die of old age. When asked if, at that point, public prosecutors will be exposed to accusations that they allowed Nazis to get away with war crimes unscathed, he offers a circumspect answer. "Objectively speaking, mistakes were made over the course of decades starting in 1950," Schrimm said. "The judiciary can't really give itself a pat on the back."
Translated from the German by Daryl Lindsey
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