Hamburg: Talking weakly into a microphone last week, a 94-year-old man told a court in Detmold, Germany, that he was sorry. This man, Reinhold Hanning, a former SS guard who worked at Auschwitz — a Nazi concentration camp in Poland which saw more than one million deaths – was before the court as part of his ongoing trial for crimes committed during the Nazi period. It is expected that the court will deliver its verdict by July this year.
Not far from here, two other such matters of former concentration camp staffers are in the pre-trial stage. Last month, Ernst Tremmel, one of the defendants in another trial died. Last July, Oskar Groening – referred to as “the bookkeeper of Auschwitz” – was convicted and sentenced to four years’ imprisonment after being found guilty of being an accessory to murder of more than 3,00,000 people. More than 70 years after World War II ended, why are people, now in their nineties, still being tried for war crimes in Germany?
Much of it can be traced back to one pivotal moment of jurisprudence. In 2011, a German court ruled that John Demjanjuk, a former guard at Sobibor – a concentration camp in Poland – was guilty of being an accessory to the murders of 28,000 people even though he had himself not killed anyone.
Earlier Nazi war crime trials in the immediate decades after the war ended had seen a slew of convictions and sentences, but had been broadly restricted to upper and mid-level officials, implying that the others who served had merely been following orders.
But in 2011, the judge found that simply being there meant Demjanjuk had been part of the Nazi machinery and that every guard “knew he was part of an organisation with no other purpose but mass murder”.
“[The earlier] jurisprudence viewed the Nazi Holocaust’s main circle of authorities as a very restrictive group,” said Daniel Bonnard, a Phd scholar at the University of Marburg working on allied prosecution of Nazi crimes in the post-war occupation of Germany (1945-1949). “Even though, the largest majority of staff members at concentration camps, as well as state officers, were responsible for implementing the politics of extermination, they were viewed as merely “followers”, without a personal intent or a will to kill on their own volition. That jurisprudence was an apologetic one and actually led to the exculpation of a high number of perpetrators from middle to lower ranks.”
A lack of political will is another reason experts have pointed to for the delays in trying people. Further, in the immediate post-War years, as the West got into confrontational mode with the Cold War building, it became expedient to work with those in the political system, even if they had at one time been Nazis. Many people were simply reabsorbed into society.
“Theoretically these trials could have happened in the past,” said Andrej Umansky, a lawyer and war crimes research scholar at the University of Cologne. “But justice failed and everybody failed. German society didn't want these trials — people wanted to rebuild and forget. But today society has changed. People think justice wasn't done.”
Some of this possible simply stemmed from administrative burdens and the sheer amount of work to be done in a fractured post-war society: files being lost, not enough specialists, technical loopholes.
But this revised reading of the law in the Demjanjuk case means that even low level officials can be brought to book – setting German prosecutors on the task of scanning old files and reopening shelved cases.
The Central Office of the Judicial Authorities for the Investigation of National Socialist Crimes, the nodal body for such work, is currently carrying out “numerous such preliminary investigations” for the whereabouts of “several hundred former guards”, said Thomas Will, a public prosecutor and deputy head of the Central Office. He said 30 cases were being looked at more closely by local prosecution authorities.
There is no statute of limitations in Germany when it comes to murder, so such cases can still be brought to trial. If convicted for abetting murder, a person can be sentenced to between three and 15 years.
There are several compelling and much-debated questions contained in these long-delayed trials. How far does culpability extend if you were not a direct killer but merely worked within the system? What purpose does it serve to convict someone who is very old and has already lived out his life as a reformed member of society? Are such trials more about healing for the victims rather than punishment for the perpetrators? Is there a purpose served in trying lower officials, so late in the day?
“Just the fact that "guiltier" perpetrators have already died, cannot be a cause to not prosecute offenders,” said Will.
And simply because the matters were not tried before doesn’t mean they can’t be now; the law is the law. “It's still highly significant,” said Efraim Zuroff, a Holocaust historian and ‘Nazi hunter’. “Just because some top Nazis escaped justice doesn't turn all their accomplices into innocent persons. We owe it to the victims to seek out their killers, who victimised millions of innocent people, just because they were classified unjustly as "enemies of the Reich."”
Understandably, there are difficulties in prosecuting such cases. First the potential accused persons have to be located. They would be very old, as would the survivors, many of whom left Germany a long time ago and might have to be brought here to give their statements.
In some cases because of the inability of the accused to understand the proceedings or their lack of fitness, such matters cannot be further pursued. Then there is the tricky issue of memories: how reliable are they given the length of time that has elapsed?
But age alone cannot be an issue, it’s also a question of mental and physical health, pointed out Zuroff. “If they're healthy, there's no reason to ignore them,” he said. “Four and a half years ago, I found a man who helped deport 15,700 Jews to Auschwitz from Kosice. He was 96 and still driving his car.”
Such trials have in the past involved historians appearing as expert witnesses to testify to the extent and historical import of such crimes. But, as with Groening, who conceded early on that he had been involved, this might not bring new facts to light. What it does instead is allow survivors to be heard and perhaps offer some sort of closure.
“The mere conviction of the perpetrators is of the utmost importance for many victims and their descendants,” said Will.
At the trial of Groening last year for instance, some survivors said they were satisfied that the trial was taking place and were less focused on punishment.
“It is not mainly about punishing the offenders but bringing closure to victims,” said Umansky. “It's more symbolic. It's not a show trial but not a normal criminal trial either.”
And then there is another, more diffused purpose such trials serve: that of remembering, recounting and evaluating the dangers of the past at a time when the horrors of the mid-20th century are quickly fading. “I hope that such trials can offer a didactic barrage against the new awaking of antisemitism and racism,” said Bonnard. “There is still some ignorance and sometimes a disturbing indifference concerning the mass crimes of the Nazi regime, despite real efforts in education and public history.”
About 11 million people died during the Nazi regime (1933-1945), including about 6 million Jews, many of whom were exterminated as part of a racial cleansing endeavor.
“The West German penal system failed to deal adequately with the Nazi crimes,” he continued. “In order to deal with what is sometimes called a “second guilt”, it is necessary to look beyond the criminal courts and to bring this topic to the forefront of education and public exhibitions.”
Published Date: May 06, 2016 13:37 PM | Updated Date: May 06, 2016 17:33 PM