Spring 2005 #41 Justice
 
  Can Nazi War Criminals Be
Prosecuted in the 21st Century?
By Dr. Efraim Zuroff
 
 


The recent memorial ceremonies held at Auschwitz and at the United Nations in late January 2005 to mark the sixtieth anniversary of the liberation of the largest of the Nazi death camps, with the participation of numerous heads of state and leading dignitaries, reinforced the growing perception that over the past half-century, the Holocaust has become the ultimate paradigm of modern genocide. Judging from the speeches made at the events, it is obvious that there is no immediate danger that the systematic annihilation of European Jewry by the Nazis and their collaborators will be forgotten and it appears that the civilized world has learned some important lessons about the potential dangers of racism and anti-Semitism.

Yet while this development is certainly highly significant and very welcome, it is also important to note what was missing from the speeches made at those ceremonies. Thus, besides the sympathy expressed for the victims and the determination to prevent such atrocities in the future, to the best of my knowledge, not a word was said about the necessity of bringing those unprosecuted Nazi war criminals still alive to the bar of justice.

And while most people would naturally attribute that “ oversight ” to the many years which have passed since the crimes were committed and to the consequent ostensible “ impossibility ” of affects not only the countries in which the crimes of the Shoa were committed or whose nationals carried out those crimes, but also the countries which knowingly or unknowingly granted postwar refugee status to Holocaust perpetrators. In this regard, it is important to remember that in order to carry out a crime of the magnitude of the Shoa which took place in practically every European country with the exception of the six neutrals (Switzerland, Sweden, Spain, Turkey, Portugal, Ireland), enormous manpower was required - Germans and Austrians, as well as local collaborators. Many of those involved in these crimes were relatively young men, and with the advances of modern medicine, many are still alive. Thus, there is no shortage of potential candidates for prosecution. The methods chosen to punish these criminals vary due to various historical and legal circumstances. In the countries in which the crimes of the Shoa were committed, the suspects are tried on criminal charges such as genocide, crimes against humanity, war crimes and murder, and this is also the case in countries of refuge such as Australia and Great Britain , which passed special laws (in 1989 and 1991 respectively) to enable such prosecutions. In the United States and Canada , however, the suspects are tried on civil charges - for immigration and naturalization violations - rather than on criminal charges, and are stripped of their citizenship and deported. In two countries, Norway and Sweden , a statute of limitations on murder precludes any possibility of the investigation, let alone prosecution, of such cases. A similar statute of limitation was scheduled to be implemented in Germany in 1969, but was twice delayed and ultimately rejected by the Bundestag.

The difference in prosecution methods has had a profound impact on the number of successful prosecutions during the past two and half decades, and especially during the past four years. Thus, of the 32 convictions achieved since the beginning of 2001, more than seventy percent were obtained in the United States, and if we add Canada, both of which pursue denaturalization and deportation, the figure rises to over eighty percent. The reasons for the tremendous gap in conviction rates between the two methods do not only relate to the relatively easier task of achieving a victory on civil rather than criminal charges. Probably the most important factor in this regard is the existence of abundant political will in the United States , and to a much lesser degree in Canada , to proactively pursue these cases and to take whatever measures are necessary to prevent guilty defendants from exploiting the legal system to prevent their punishment. Thus the American Office of Special Investigations has taken successful legal action against 98 Nazi war criminals since its establishment in 1979, a record unparalleled anywhere else in the world during this period.

The issue of the existence of political will to prosecute has proven to be increasingly critical, especially in the countries in which the crimes of the Shoa were committed. As time goes by, with the obvious practical problems faced by these proceedings mounting, prosecution is often dependant to a large extent on political, rather than judicial or evidentiary, factors. The statistics for the last four years clearly demonstrate this fact. Thus the country which has achieved the most criminal convictions since January 2001 is Germany , which is one of the few countries in Europe in which there is sufficient political will to prosecute Holocaust perpetrators and no serious political opposition to such trials. Thus, half of the six convictions on criminal charges have been in Germany , with one each in Poland , France (in absentia) and Lithuania (a medically-ill defendant who did not attend a single court session and was not punished). The only indictments submitted on criminal charges during the past year were also in Germany . By comparison, in Austria in which numerous unprosecuted participants in crimes against Jews reside, there has not been a conviction of a Nazi war criminal during the past three decades.

In post-Communist Eastern Europe as well, the lack of political will to bring local Nazi war criminals to justice is probably the most serious obstacle to the prosecution of Holocaust perpetrators. This is particularly unfortunate, because of the extensive collaboration with the Nazis in these countries and the important role played by the locals in the murders. Thus such trials, besides achieving justice, have highly-significant educational potential and constitute one of the best ways of enabling these countries to face the issue of the complicity of their nationals in the crimes of the Holocaust.

In the Baltics, for example, there has not been a single trial of a local Nazi war criminal held since these countries became independent, in which the defendant was present at the trial sessions on a regular basis and was medically fit to be punished following his conviction. In Lithuania , for example, both Aleksandras Lileikis and Kazys Gimzauskas, the commander and deputy commander of the Saugumas (Lithuanian Security Police) in the Vilna district, both of whom fled the United States after legal proceedings were instituted against them, were ignored as long as they were healthy and were only investigated and subsequently indicted (in accordance with special laws passed for that purpose by the Lithuanian parliament) after it was clear that they were medically unfit to stand trial, let alone bear punishment. In Latvia , the local prosecution studiously ignored abundant evidence against escaped Arajs Kommando officer Konrad Kalejs until international pressure finally led to an extradition request (which was unfortunately thwarted by his demise) and in Estonia , Nazi war crimes investigations have languished unresolved for years.

The situation elsewhere in Eastern Europe is, with several exceptions, hardly any more promising. In fact, with the exception of Croatia , which successfully convicted Jasenovac commandant Dinko Sakic (presently in prison serving a twenty year sentence for murder) and Poland , which convicted Chelmno operative Henryk Mania (currently serving an eight year prison sentence), not a single country has ever prosecuted a Nazi war criminal since the fall of Communism. In fact, until recently, there has never even been any such investigation, although numerous Communist criminals have been investigated, and more than a few prosecuted, during this period in these countries.

Two and a half years ago, the Simon Wiesenthal Center launched its “ Operation: Last Chance ” project ( www.operationlastchance.org ), which offers financial rewards of up to 10,000 euros for information which will facilitate the prosecution and punishment of Nazi war criminals, in seven post-Communist countries (Poland, Romania, Hungary, Lithuania, Latvia, Croatia, and Estonia), as well as in Germany and Austria, and it has had two positive effects. On the one hand, it has focused public attention on the problem of local complicity (among other means by publishing newspaper ads which highlight this phenomenon) and by encouraging the submission of concrete information regarding suspected Nazi war criminals. To date, the names of 78 suspects have been submitted by the Center to local prosecutors in Lithuania, Latvia, Croatia, Hungary, Romania and the Untied States, and at least two cases appear particularly promising, that of Milovoj Asner, who served as the Ustashe chief of police in Slavonska Pozega in Croatia and played an active role in the persecution and deportation to concentration camps of at least hundreds of Jews and Serbs; and of former Hungarian Army officer Charles Zentai who, in the fall of 1944 in Budapest, conducted manhunts of Jews whom he beat and tortured and in at least one case murdered. Asner, following his exposure, left Croatia for Austria and Zentai has been living in Australia since 1950, but both are fairly likely to be extradited to the site of their crimes, to stand trial.

Besides the prosaic issues related to such cases, we would be remiss if we did not reiterate the principles which constitute the legal foundation for the efforts to bring Nazi war criminals to justice in the twenty-first century. First and foremost, that the passage of time in no way diminishes the guilt of the perpetrators of such crimes. Second, that there should be no statute of limitations on the prosecution of such crimes. Third, that each

individual bears personal responsibility for his actions and that “ superior orders ” is not an acceptable defense for crimes against humanity, war crimes and genocide. (The Canadian Supreme Court and its Ontario counterpart are the only courts in the world which have recognized superior orders as a legitimate defense, a decision which in 1994 forced Canada to switch to denaturalization and deportation). If we add our sense of obligation to the victims of the Shoa to attempt to hold the perpetrators who victimized them accountable for their crimes, I believe there is a powerful case for the continuation of these efforts during the next few years. With this in mind, the silence from world leaders on this subject at the Auschwitz death camp is deafening and incomprehensible.