The arrest last week in the United States of Auschwitz guard Johann Breyer has once again focused public attention on the final efforts to bring Nazi war criminals to justice. As usual, it was Breyer's age (89), which was the focal point of much of the media coverage, again raising questions regarding the viability and validity of prosecuting elderly suspects so many years after they committed their crimes. This case, however, is only the tip of the iceberg of a veritable revolution in German prosecution policy vis-à-vis Nazi war criminals, which has already yielded potentially remarkable results and is likely to conclude the efforts to bring Holocaust perpetrators to justice in Germany with a totally unexpected flourish.

This highly significant change began about seven years ago, when the United States sought to deport Sobibor death camp guard Ivan Demjanjuk, whose deportation was ordered by a US court for concealing his collaboration with the Nazis, when he applied to emigrate and obtained American citizenship. Nazi war criminals cannot be prosecuted in the United States because their war crimes were committed elsewhere and the victims were not Americans, hence the charges against them are related to immigration and naturalization violations. In Demjanjuk's case, however, none of the countries which could have sought his extradition to prosecute him were willing to do so, either for political reasons (Ukraine), a previous failed attempt (Israel), or because of the difficulty of proving his participation in specific crimes given that only a very few survived Sobibor.

The Americans, to their credit, were determined to expel him. They were not deterred by the history of the case, which was the longest ever in US history of a Nazi war criminal and certainly the most unusual, Demjanjuk having been denaturalized and ordered deported twice, having regained US citizenship following his initial loss of citizenship and expulsion from Israel.

In order to do so, they sought to convince German authorities to take responsibility for the case. But for almost 50 years, the minimum requirement in Germany for mounting such a prosecution was proof that the suspect had committed a specific crime against a specific victim, and there was no such evidence available. It was at this point that Kirsten Goetze and Thomas Walther, two very determined German prosecutors working at the Central Office for the Clarification of Nazi War Crimes (Zentrale Stelle…), the clearinghouse for all Nazi war crimes cases in Germany, were able to craft an innovative legal strategy that would enable the prosecution of Demjanjuk in Germany. It was based on the assumption that any person who served at Sobibor, which was one of the six Nazi "death camps," concentration camps with the apparatus for mass annihilation whose primary function was mass murder, could be convicted at least of being an accessory to murder, even if proof was lacking of a specific crime.

This theory was put to the test in Munich, where the former Sobibor death camp guard was put on trial in October 2009. His conviction in May 2011 established the basis for the prosecution of any suspect who served in any of the six death camps (Auschwitz-Birkenau, Treblinka, Belzec, Chelmno, Sobibor and Majdanek) or in the Einsatzgruppen, the special mobile killing units which murdered approximately 1,500,000 Jews in the territories of the former Soviet Union.

During the past three years, the German judicial authorities have begun to implement this new policy and have already achieved significant results. Thus, 51 persons living in Germany have already been recommended for prosecution and several have been arrested. How many will actually be put on trial and/or punished now depends on the local prosecutors who receive the cases from the Zentrale Stelle. But it is important to note that such legal measures remain extremely important since the passage of time in no way diminishes the guilt of those who were part of the mass murder operations; that old age should not afford protection to those who helped commit such heinous crimes and that we still have an obligation to the Nazis' victims to try and bring those responsible for their murder to the bar of justice.

Johann Breyer will no doubt try to play the infirmity card, as invariably such persons do when facing possible prosecution, but instead of dwelling on his current genuine or assumed frailties, think back to 1943-1945, when he was at the height of his physical powers and devoted all his (then) considerable energy to helping carry out the largest mass murder in a single location in human history.

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