National Post (National Edition)
End of an era for prosecuting Nazi war crimes
Defendants becoming infirm or dying
When local prosecutors in northeastern Germany made an announcement about 96-year-old defendant Hubert Zafke this week, it appeared like standard procedure. Zafke’s dementia, they said, had “reached a severity that the defendant is no longer able, inside and outside the courtroom, to reasonably assess his interests or coherently follow or give testimony.”
Those few words, however, could mark the start of the end of an era of war crimes prosecutions.
Zafke stood accused of assisting in the killing 3,681 people at the Nazi’s Auschwitz-Birkenau concentration camp. Although he has denied the charges, a Polish court established in 1951 that he served in the medical unit of the Auschwitz concentration camp, after joining the SS at age 19. At the end of the Second World War, he was sentenced to four years in prison in Poland, but German prosecutors urged for a separate trial in 2013.
It subsequently took three more years until the trial against Zafke was set to start in the town of Neubrandenburg in 2016. By that time, Zafke’s health had faded, and so had the hopes of thousands of relatives of the victims who still seek justice for some of the worst crimes in history. His case could be one of the last such trials in Germany, as investigators themselves acknowledge that it is becoming increasingly difficult to find new suspects who are still alive, and legal obstacles that may have hampered extensive prosecutions for too long.
“There are few days which I do not spend wishing that we could go back in time by a couple of years or decades. We could have found so many more suspects,” said Jens Rommel, chief prosecutor of the German Nazi crimes agency. Zafke’s case was part of 30 investigations that were handed to local prosecutor’s offices across Germany in 2013 by the Central Office for the Investigation of National Socialist Crimes in Germany.
Of the 30 suspects accused of Nazi crimes in 2013, 27 have died before their trials could start or were unable to defend themselves due to their ailing health. Only two have been sentenced: Oskar Gröning and Reinhold Hanning, who died this summer before he could go to prison.
Zafke could have been the third, and sentencing him would have been easier than at any other point of time in recent German history.
“By 1960, murder and abetting murder were the only Nazi-era crimes that prosecutors could charge,” said Elizabeth Barry White, a senior historian with the Holocaust Museum in Washington. As a result, even highranking Nazi officers could often not be convicted of their most gruesome crimes, but were instead charged with lesser offences.
“As time passed and the higher-ranking perpetrators died out, the pool of potential defendants shrank to those against whom evidence was hardest to find,” said White. A radical rethink was needed, and it came in 2011 with the conviction of former Nazi guard John Demjanjuk.
Whereas prosecutors previously had to prove that individuals were responsible for the crimes themselves and proceeded independently, Demjanjuk’s sentence was based on the fact that he had been a guard in a Nazi facility whose primary function was mass murder. The judges assumed that anyone who worked in any such facility abetted the murders in it.
Demjanjuk died before his appeal against the sentence could be rejected. It took until the rejection of Oskar Gröning’s appeal last year for that approach to be confirmed as legally viable.
It remains unclear how much longer Rommel and his colleagues will be able to hunt down the last remaining untried Nazi guards.
“We need to keep in mind that the age range of the suspects we now focus on is 90 to 99,” said Rommel.