Analysis | Nazi war crimes prosecutions still matter for European politics and diplomacy today. Here’s why.
On January 27th, 2023, the world celebrated the 78th anniversary of the liberation of the Auschwitz concentration camp. Now, almost 80 years after the end of the Holocaust and World War II, German prosecutors are racing against the clock to bring suspected Nazi criminals to justice. These contemporary court cases are setting new precedents for the legal response to a war crime. Other nations can learn from Germany’s mistakes and achievements to ensure that war criminals are brought to justice much earlier. The question for many is whether, after all this time, are these cases worth the effort?
Some argue that they are a pointless mission, given the age of the defendants. The fragile 90-year-olds, who were teenagers when they committed the crimes, can at best, only sit in the courtroom for a few hours at a time and will likely never see a day in jail. So, why spend taxpayer dollars on trials that may not end with a conviction?
Others argue that the point of these trials is not the sentencing; it is not important if these men or women spend the remaining few years of their lives in jail. Instead, it is necessary to bring justice to Nazi victims on an international stage. Many Nazis found respectable positions in society after the end of the war, and walked freely in the streets among those they tortured just years prior.
These court cases not only are a public rejection of the Nazi past but also have implications for current and future war crimes prosecutions. As we approach the one-year anniversary of the start of the war in Ukraine, the Associated Press and FRONTLINE, among others, are already collecting evidence of mass atrocities committed by Russian forces. The European Union and Ukraine have condemned Russian actions. There are now even efforts within the United Nations and the European Parliament to create a special tribunal to prosecute Russia for the crime of aggression. However these plans unfold, postwar justice is essential to the long-term reconstruction of Ukraine. To achieve it, diplomats and prosecutors can look to the German example for possible guidance.
To examine the effectiveness of these trials today, it is helpful to look at the historical context and understand why these cases are even being brought up in the twenty-first century. After the war ended in 1945, the Allies immediately organized the Nuremberg trials to condemn Nazi crimes and punish those responsible for the atrocities of the Holocaust. They also were meant to show to the defeated Germans the virtues of orderly legal procedures when dealing even with the most heinous crimes. Twenty-two Nazi leaders in government or military positions, such as Hermann Goering or Joachim von Ribbentrop, were put on trial while the world watched. Nineteen were convicted, three acquitted. Following this first trial, 177 more war criminals were tried between 1946 and 1949. The defendants, however, did not include those who were lower in the Nazi hierarchy and cogs of the well-oiled German machine. Many of the Germans who enabled the Nazi regime to exterminate nearly six million Jews went on with their lives after not only the end of the war, but also the end of the Nuremberg trials.
The initial denazification efforts only lasted a few years until the focus shifted due to the Cold War. West Germans started rebuilding their country, and the economic boom in the 1950s made it easy to forget the sins of the past. In the 1960s, the trial, conviction, and execution of Adolf Eichmann in Jerusalem brought new awareness and scrutiny to the Nazi criminals that were unbothered by their past. Fritz Bauer, a district attorney in Frankfurt and a Jewish Holocaust survivor, pushed for reparations for the victims and to bring Nazi criminals to justice. His efforts led to three Auschwitz trials in Frankfurt between 1963 and 1968. Of crucial importance in this context was a decision of the German Parliament to lift the statute of limitations on murder. The German penal code originally called for a statute of limitations of twenty years, meaning that murderers and war criminals could no longer be tried after May 1945. Germany extended the statute of limitations twice in 1965 and 1969 before lifting it permanently in 1979.
It was not until the 1980s when a groundbreaking trial would occur to set a precedent for the lower level Nazis. The trial of Ivan Demjanjuk was instrumental in the process for bringing suspected Nazi criminals to justice, who were not publicly known to have been either a mastermind of the Final Solution or the ones pulling the trigger directly. Demjanjuk worked as a guard at the Sobibor concentration camp, located on the border between modern day Poland and Ukraine. After the Allied liberation of the camps, he posed as a victim of the war living in Sobibor, moved to the United States, and became a citizen under the Displaced Persons Act of 1948. It was not the Germans nor the Americans who initially attempted to bring Demjanjuk to justice, but rather a Ukrainian journalist and the Israeli justice system. After an investigation into the Sobibor camp, lower courts in Israel sentenced Demjanjuk to death. However, due to a lack of sufficient evidence to reach a decision without reasonable doubt, the Israeli supreme court overruled the decision and acquitted Demjanjuk.
In 2009, the Germans finally picked up the Demjanjuk case and thereby made a groundbreaking public statement that they would take a stance after remaining silent for so long. It was the first time that someone was tried as an accessory to murder. This set a major precedent in Germany: suspects could be brought to justice, even if they might not have pulled a trigger themselves or planned the Final Solution. Prior to the Demjanjuk case, it could be difficult to prove, as evidenced by the Israeli case, that someone was guilty of Nazi crimes. Notably, this successful conviction happened within the now reunified Germany; it marked a monumental step in dealing with the Nazi past.
The Demjanjuk case opened the door for the prosecution today of accessories to the Holocaust. Now secretaries, accountants, and other civilian employees — who indirectly kept the murder machinery running — were of interest to the authorities. The defense of those concentration camp guards brought forth today are based on this idea of reasonable doubt. The defendants say that while they were stationed on the watchtowers of the concentration camps, they were not among the prisoners and thus did not know or see what was happening. This argument is absurd: watchtowers were built precisely so that the guards could oversee the daily operations of the concentration camps. Even if they could not see the death, they could smell it. However, this rationale would have worked in court in the past. The Demjanjuk case rejects this argument. The court no longer has to prove that the defendant directly killed anyone themselves, but rather that they enabled the killing to occur.
In 2015 the German courts convicted Oskar Gröning, who had been a bookkeeper and guard in Auschwitz in his early 20s, using the precedent made in the Demjanjuk case — he was 94 years old at the time of his conviction. In 2019, the new approach was taken a step further for guards of a concentration camp, not a death camp. Johann Rehbogen and Bruno Dey were tried for their role as concentration camp guards at the Stutthof concentration camp in Poland. While Gröning died before he could complete his four-year sentence, the courts suspended Rehbogen’s case due to his poor health and Dey was sentenced but as a juvenile, since he was a minor at the time of the crime, these cases still signify a major step in the right direction both for Germany and the world.
While an uncounted number of Nazi criminals escaped justice, Germany is doing its best today to right some of those wrongs. These efforts matter not only for moral and ethical reasons, but also for Germany’s reputation as a major power. As evidenced by the three more contemporary cases examined, the defendants and witnesses are scattered all over the world, due to the postwar resettlements that occurred. This is not just a German issue, but rather a global issue. Many of the affected families moved to the United States and other countries after the end of the Holocaust; the terror of their wartime experience transcends national borders.
Through these court cases, Germany set the tone that the long-accepted, lower-level Nazi crimes are wrong and must also be prosecuted. This is a powerful message, one that can only strengthen Germany’s relationship with its modern-day allies. All Europeans were affected by the horrors of World War II, and the aftermath of the Holocaust is still relevant since antisemitism has outlived the end of the war. The decision to pursue these court cases is a sign of respect to all those affected, in particular the United States, Israel, Poland, and Ukraine.
The outcomes of the cases allow Germany to gain legitimacy in today’s global world order, as it reckons with its past and becomes a leader in foreign affairs. The German approach to war crimes is relevant for the rest of the world as well. Once the war in Ukraine ends, for example, the Ukrainian people can look to the German example for how to address the crimes against humanity their country experienced. The recent German court cases show that in the twenty-first century, war criminals cannot evade justice.
Sophie al Mutawaly is a graduate student in the M.A. in European Studies program at Georgetown University’s School of Foreign Service.
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