Germany has undergone a dramatic change in its prosecution policy.
By EFRAIM ZUROFFThe Nazi slogan "Arbeit macht frei" (Work sets you free) is pictured at the gates of the former Nazi German concentration and extermination camp Auschwitz-Birkenau in Oswiecim, Poland January 27, 2017.(photo credit: AGENCY GAZETA/KUBA OCIEPA/VIA REUTERS)
IN JUNE 1981, several months after I started working as a researcher in Israel for the US Justice Department’s Office of Special Investigations (OSI), which was established in 1979 to prosecute Nazi war criminals and collaborators who had emigrated to America, Jerusalem hosted the first World Gathering of Jewish Holocaust Survivors.Among the important guests who attended the event was my boss, OSI director Allan Ryan, to whom I posed a question, which was on the minds of many of the participants.How much longer do you think the prosecution of Holocaust perpetrators will continue? “Three to five years,” he responded, with abundant confidence. Eleven years later, Josef Schwammberger, the commandant of three Nazi forced labor camps in Poland, was convicted in Stuttgart of seven counts of murder and sentenced to life imprisonment.The New York Times report on his trial was entitled “‘Last’ Nazi Criminal Gets Life Sentence,” and two years later, a book about his trial was published under the title, “The Last Nazi: Josef Schwammberger and the Nazi Past.” I am often reminded these days of both these instances, as news breaks of yet another indictment being filed in Germany against a Nazi war criminal.Indeed, just recently, the German Central Office for the Clarification of National- Socialist Crimes (“Zentrale Stelle”) announced that it had submitted indictments against nine suspected guards who had served in the Auschwitz, Mauthausen, Buchenwald and Ravensbruck concentration camps. If we add the two indictments submitted several weeks previously by the same office against two guards from the Stutthof concentration camp, the number rises to 11 individuals accused of Nazi crimes and likely to face prosecution in 2018. On December 29, 2017, Germany’s constitutional court ruled that Oskar Groening, 96, known as “the Bookkeeper of Auschwitz” – who had already been convicted in 2015 under the new prosecution policy – must go to jail for his role in the mass murders committed at the Nazi concentration camp. Given the fact that since 2001, only seven Nazi war criminals had been prosecuted in Germany, and that more than 70 years have passed since the end of World War II, this statistic is frankly practically unbelievable.SO WHAT has changed in Germany? Ironically, the answer is connected to the failed prosecution in Israel of Ivan Demjanjuk as “Ivan the Terrible” of Treblinka. Following his expulsion from Israel, the Ukrainian who had served as an armed SS guard at the Sobibor death camp returned to the United States, and was able to get back his American citizenship. To the credit of the OSI, they again filed charges against him, this time for concealing his service in Sobibor, and in 2005 Demjanjuk was ordered deported to Germany, Poland, or Ukraine.(The Americans cannot prosecute Nazi war criminals for their Holocaust crimes, since they were committed overseas and the victims were not US citizens. As a result, these individuals are tried for concealing their wartime service with the forces of the Third Reich, when they applied to emigrate to America and later when they obtained American citizenship. The punishment in these cases is denaturalization and deportation, or extradition, if there is a country which seeks to prosecute them for their crimes.)The problem was, however, that none of the countries to which he could have been deported was willing to accept him. Germany normally did not seek to extradite Nazi criminals who were not Germans, Volksdeutsche (Eastern Europeans of German origin), or German citizens. In addition, in order to prosecute a Holocaust perpetrator in the Federal Republic, prosecutors had to be able to prove that the suspect had committed a specific crime against a specific victim and that the crime had been motivated by racial hatred. In Demjanjuk’s case, however, no such evidence was available, since the only person who had ever testified to Demjanjuk’s active role in the murders at Sobibor, a fellow Ukrainian SS guard named Ignat Danielchenko, was no longer alive. The lack of evidence sufficient for a criminal prosecution was apparently also the reason why Poland declined to extradite Demjanjuk.As far as Ukraine is concerned, they have never even investigated, let alone prosecuted, a single Ukrainian Nazi suspected of Holocaust crimes. Thus it appeared that Demjanjuk would remain for the rest of his life in his home in Seven Hills, Ohio, an extremely frustrating result for the American authorities, who had been trying to get rid of him for more than three decades.Under intensive lobbying from the Americans, it was the Germans who found a solution to the problem, which ultimately paved the way for numerous additional trials of Nazi war criminals in Germany, who otherwise would never have been prosecuted.
The individuals responsible for the turnabout were two lawyers who worked at the “Zentrale Stelle,” Thomas Walther and Kirsten Goetze, who proposed the adoption of a new prosecution strategy for cases of guards at “pure” death camps, those like Sobibor, without adjacent labor camps.Since the sole purpose of these camps was the murder of innocent civilians, in effect any person who served in such a place could be convicted of “accessory to murder” based on service alone, the punishment for which is 5-15 years in German law. In practical terms, this meant that in certain Nazi war crimes cases, German prosecutors no longer had to prove that a suspect had committed a specific crime which had been motivated by racial hatred against a specific victim, which usually required an eyewitness who had seen the crime. Now it would be possible to convict some Holocaust perpetrators based on documents alone, which was obviously much easier.Applying that strategy, Demjanjuk was extradited to Germany in 2009 and charged with 27,900 counts of accessory to murder, one for each person who was murdered at Sobibor while he served there as an armed guard. This was the test case for the new prosecution strategy, and once he was convicted and sentenced to five years in prison in May 2011, the Central Office began to look for additional suspects. Most important, it justifiably expanded the scope of the search to include Auschwitz and Majdanek, death camps with adjacent labor camps, as well as the Einsatzgruppen, the mobile killing units which murdered well over a million Jews in the areas of the Soviet Union, primarily by shooting but also using gas vans.Since then, two additional men who served in Auschwitz – Oskar Groening (2015) and Reinhold Hanning (2016) – have been convicted for their service. The search for suspects has, moreover, been extended beyond the six major death camps (Auschwitz, Treblinka, Belzec, Chelmno, Sobibor and Majdanek) to include Stutthof, where the Nazis built a gas chamber in 1943 to assist in implementing the Final Solution, as well as to Mauthausen, and Ravensbruck, for the same reason, and Buchenwald.THESE BELATED efforts by the German authorities to bring Holocaust perpetrators to justice, led by Jens Rommel, the director of the “Zentrale Stelle,” are a very minimal corrective to Germany’s highly flawed record in terms of prosecuting Nazi war criminals, and they are fraught with many pitfalls on the way to convictions and punishments.Cases initiated by the “Zentrale Stelle” must be sent to local prosecutors nearest to the residence of the suspects, who are the ones to handle these files. Past experience has shown that while some do so with great dedication, others can be indifferent to the unique significance of such proceedings.Even more problematic is the advanced age of the defendants, who are all at least ninety, and whose health can easily deteriorate.I often half-jokingly say that I am the only Jew in the world who prays for the good health of Nazi war criminals, but ironically, such prayers are currently needed more than ever, since the wheels of justice turn ever so slowly, and these cases are not given special priority.Another issue which was exposed recently concerns the cases of members of the Einsatzgruppen, against whom not a single indictment has yet been submitted. We identified at least two men who served in Einsatzgruppe C, the unit which carried out the massacres at Babi Yar and other places in Ukraine, and three months ago, with the help of German TV station ARD’s leading investigative program “Kontraste,” exposed them alive and well living in Germany. We had submitted their names as possible suspects to the German ministers of justice and the interior in September 2014, but they still had not been questioned by the authorities, and indictments have not yet been submitted against them. It turns out that no one had ever compiled a complete roster of the Einsatzgruppe, individuals who spent lengthy periods of time murdering Jews on practically a daily basis, which is a sad commentary on the past efforts of German justice.The dramatic change in Germany’s prosecution policy has, however, produced concrete positive results and has the potential for even greater successes, none of which would have been possible without the change in prosecution policy. In fact, Germany is the only country which has indicted and convicted any Nazi war criminals in the past few years, and there is very little chance that any other country will do so in the future. Given the country’s central role in the enormous crimes committed in World War II and the Holocaust, that is as it should be, but those responsible for the change still deserve special credit, and our gratitude, for keeping alive the efforts to hold Holocaust perpetrators accountable, against all odds and predictions. Dr. Efraim Zuroff is the chief Nazi hunter of the Simon Wiesenthal Center and director of its Israel Office and Eastern European Affairs.
