Full justice requires punishment

Efraim Zuroff
The Jerusalem Post

Under these circumstances, the validity of such trials can be questioned.

More than six years have already passed since the landmark decision by a Munich court in May 2011 to convict Ivan Demjanjuk as an accessory to murder for his role as an SS guard at the Sobibor death camp in Poland.

That decision was a direct result of a dramatic change in German prosecution policy vis-à-vis Nazi war criminals, which has paved the way for additional successful trials of Holocaust perpetrators – but not a single one of the death camp operatives convicted in recent years in Germany has yet sat one day in jail. The death late last month of Auschwitz guard Reinhold Hanning prior to his incarceration underscores the problem and the unfulfilled expectations of the recent Nazi trials in Germany.

Prior to the Demjanjuk case, to prosecute a Nazi war criminal in Germany the prosecution had to be able to prove that the suspect had committed a specific crime against a specific victim, and had done so motivated by racial hatred, a level of evidence practically impossible to obtain so many years after the fact.

Under those circumstances, the Germans initially refused a request by American prosecutors to extradite Demjanjuk and prosecute him on criminal charges for his service in Sobibor, since they lacked the required incriminating evidence.

Although there was no doubt that he had served in that death camp (there was a document which proved that), there were no documents which could prove, or witnesses alive who could testify, to crimes he had committed against specific victims.

Having successfully stripped Demjanjuk of his US citizenship and having obtained a deportation order against him for concealing his World War II service with the Nazis, which was the maximum that could be done against Nazi war criminals and collaborators living in the US, the Americans faced an impasse in the case, because they were unable to find a single country willing to accept him.

It was at his point that two German prosecutors, Thomas Walther and Kirsten Goetze, came up with an alternate strategy with the help of German law professor Cornelius Nestler, which enabled Germany to seek his extradition and prosecute him on criminal charges. Both Walther and Goetze were working at that time at the Zentrale Stelle (Central Office for the Clarification of Nazi Crimes), the German federal agency responsible for the initiation of cases against Nazi war criminals, and thus were in a position to positively influence the German judiciary to adopt their suggested approach.

Their reasoning was the following.

Since the primary purpose of the death camps (those concentration camps with apparatus for industrialized mass murder – Auschwitz, Treblinka, Belzec, Chelmno, Sobibor and Majdanek) was the commission of murder, in effect any person who served in such a camp could be charged and convicted for at least accessory to murder, which carried a penalty in Germany of five to15 years in prison.

That is exactly what happened in the Demjanjuk trial, and as soon as he was convicted, the German authorities at the Zentrale Stelle began searching all over the world for any and all individuals who had served at any of the six death camps who had hitherto not been prosecuted.

Initially several dozen former Auschwitz guards were found, as well as 17 suspects from Majdanek. Efforts were also made to find members of the mobile killing squads which operated on the Eastern front (Einsatzgruppen) and murdered approximately a million and a half Jews, and against whom the same legal reasoning could be applied.

In the ensuing six years, two men who served in Auschwitz were convicted in German courts – Oskar Groening in 2015 and Reinhold Hanning in 2016 – but to date, not one of those convicted has served a single day of his jail sentence.

It turns out that a person who appeals his conviction is not imprisoned until his appeal is decided, and both Demjanjuk (in 2012) and Hanning (last month) died before their appeals were heard, and even Groening, whose appeal was rejected in November 2016, has yet to be incarcerated.

Under these circumstances, the validity of such trials can be questioned.

Are they worth the substantial effort and expense invested if those convicted are never punished? There no doubt will be those who would respond by claiming that the punishment of such elderly defendants serves no constructive purpose, and that the most important aspect is their trial. While I definitely agree that the trial alone serves important purposes in terms of public education and historical documentation, and if the choice is between trials without punishment and no trials at all I strongly prefer the former, nonetheless in my opinion the practical punishment of those convicted remains important, and every effort should be made to implement their sentences. The crimes of the Holocaust, even those by individuals of lower ranks and positions, deserve at this point in time at least symbolic punishment.

The author is the chief Nazi-hunter of the Simon Wiesenthal Center and the director of the Center’s Israel Office and Eastern European Affairs. His most recent book, Our People; Journey With an Enemy, has been published in Lithuania and Poland and is scheduled for publication in Israel and Russia in early 2018. His websites are: www.operationlastchance. org and www.wiesenthal.com. He can be followed on Twitter @EZuroff and on Facebook.

Originally published in The Jerusalem Post (Archived Link)

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