In the years since the Holocaust, fears have increased that
the window of opportunity to bring Nazi war criminals to
justice is closing — perpetrators and witnesses are dying,
and many countries’ political will to bring charges against
old men and women is diminishing.
Last week, the window opened a little.
Germany, following the conviction
in May of accused death camp guard John Demjanjuk, announced
that it would reopen dormant investigations of hundreds
of other people, mostly men, who also served as guards
at death camps during World War II. Because of a precedent
set in the Demjanjuk verdict, German courts will for the
first time seek convictions of individuals who are proven
to have served as guards, even if there are no witnesses
or other evidence to link them to specific criminal acts.
The German precedent, observers
say, will increase the government’s ability to prosecute
accused war criminals, may be used in the court cases of
other countries and will certainly carry symbolic value:
Germany, where the Final Solution originated, is still
the home of the world’s greatest number of people who participated
in mass murder under the swastika.
“There is no question that the
legal precedent set in the Demjanjuk conviction” — Demjanjuk,
91, is free, pending appeal — “can pave the way for the
conviction of numerous Nazi war criminals who otherwise
would never have been prosecuted,” said Efraim Zuroff,
director of the Simon Wiesenthal Center’s Jerusalem office
and coordinator of a long-term, worldwide effort to locate
Nazi war criminals. “Until now, the German prosecutors
ignored anyone against whom a specific crime could not
be proven, which made it difficult, if not impossible,
to bring to justice many thousands of those who murdered
Jews during the Holocaust.”
Zuroff, author of “Operation Last
Chance: One Man’s Quest to Bring Nazi Criminals to Justice”
(Macmillan, 2009), announced last week the launch of “Operation
Last Chance II,” a Wiesenthal Center project (operationlastchance.org)
that will “focus primarily on the new cases — those of
the people who served in the Einsatzgruppen [SS mobile
killing squads] and the ‘pure’ death camps, Treblinka,
Belzec, Sobibor and Chelmno.”
How many people who served in
SS killing units are still alive?
“Approximately 4,000 men served
in these units. Even if only 2 percent are alive, that’s
80 persons,” Zuroff said. “Assuming that half cannot be
prosecuted for medical reasons, that still leaves at least
40 who can be convicted and punished.” He declined to name
the leading targets of such prosecutions. “The higher the
rank, the bigger the priority.”
Zuroff, in an e-mail interview
with The Jewish Week, said he is coordinating his work
with Kurt Schrimm, head of Germany’s Central Office for
the Investigation of Nazi War Crimes.
“We stepped onto virgin territory,
and the court in Munich validated us,” Schrimm told The
New York Times, explaining his legal victory.
The application of the precedent
by other countries’ judicial processes — including the
U.S. Justice Department’s Human Rights and Special Prosecutions
Section, which handles Nazi war criminal cases — is unclear
so soon after the German decision.
“The cases in Germany might be
used as precedent in future trials [abroad],” said Thane
Rosenbaum, author and lecturer in law at Fordham University.
“Of course, nations are not bound by the legal precedents
of other nations.
“What the German prosecutor ultimately
did is exactly what the Nuremberg prosecutors had done
at their postwar trials: assign guilt according to organizational
membership [whether one had joined the Nazi Party], or,
in this case, whether one served as a guard in a death
camp,” Rosenbaum said. “It merely simplifies the burden
of proof: all the prosecutor must show is that the defendant
wore a uniform and carried a gun in a death camp, regardless
of what he or she might have actually done while serving
in that capacity.”
“It certainly has symbolic significance,”
said Menachem Rosensaft, who teaches law at Cornell University
and Columbia University, and is a leader in “Second Generation”
activities of children of Holocaust survivors. He called
the expansive German verdict “a very positive development,
many decades too late …[it] should have been made many
years ago. Other countries may follow suit — I don’t think
they’re likely to.”
The precedent of convicting a
war criminal on the basis of organizational affiliation
not of proven crimes “is clearly not a novel move,” Rosensaft
said. The German precedent, he said, is similar — but not
identical — to the standard employed in the Justice Department’s
three decades of denaturalization and deportation proceedings
against accused war criminals and collaborators. Someone
proven to have lied, when applying for U.S. citizenship,
about his or her membership in a banned wartime organization
is subject to deportation from this country.
“All [American prosecutors] have
to establish is that they [the accused naturalized] citizen
lied,” Rosensaft said. hejewishweek.com
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