Window Opening On Nazi ProsecutionsThane Rosenbaum in The Jewish Week, October 11, 2011
Following Demjanjuk verdict, Germany to reopen hundreds of dormant investigations.
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.