Ex-Nazi camp guard trial signals shift from German numbness

Germany sets a precedent on Thursday when it puts a 100-year-old former Nazi concentration camp guard on trial.

Prosecutors accuse the unnamed man of serving for three years until 1945 in the Sachsenhausen camp, north of Berlin, where he "assisted in the cruel and insidious murder" of prisoners.

More than 200,000 people were held in Sachsenhausen and tens of thousands died from starvation, disease, forced labour, medical experiments, systematic shootings, hangings and gassing.

The trial is the latest in a belated wave of prosecutions against elderly Germans, mostly lower-level officials in the Nazi era. There are two reasons why it is happening.

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First: because, in 1979, the German Bundestag changed the law to abolish the statute of limitations on murder.

Second: the man is going on trial now aged 100 because, put simply, Germany declined to place him, and people like him, on trial earlier.

In the last decades, Germany has earned international kudos for its unflinching efforts to examine and learn from its 20th-century crimes.

But in parallel to these visible and laudable efforts – museums, exhibitions and events – has been a traditionally weak interest in prosecuting ordinary Germans for Nazi-era crimes.

Mass murder

German Nazi investigator Kirsten Goetze is one of the reasons why things have changed. A decade ago, the 57 year old was one of the team whose work brought about the groundbreaking criminal trial of John Demjanjuk. The Ukrainian native, who spent much of his adult life in the US, was charged as an accessory to mass murder for his time as a guard at the Sobibor extermination camp, in today's Poland.

The case pushed back against decades of German jurisprudence which had let countless Nazi war criminals escape justice. Though Demjanjuk died aged 91 while his guilty verdict was on appeal, it triggered a series of similar trials of which today’s is the latest.

For Goetze, these trials indicate Germany is finally moving beyond decades as a numbed post-war society, of which German judges and prosecutors were a part.

“After the war, Germans liked to see themselves as victims. The idea of being a people of perpetrators didn’t get through,” said Goetze.

That reluctance to prosecute Nazis means that Germany "didn't cover itself in glory" in the last decades, admits senior public prosecutor Andreas Brendel.

For the last 25 years he has worked in the western city of Dortmund in a department that, since its foundation in 1961 has dedicated itself to following up cases related to the Nazi dictatorship.

He paints a complex picture of a prevailing post-war mood to draw a line under the past, a narrowing legal corridor for cases from the 1960s and, throughout it all, a chronic lack of resources and joined-up thinking between state and federal authorities to pool know-how.

Criminal law

“A lot was messed up, to be honest,” he said, but he insists much was achieved, too. His department carried out 1,483 investigations in the last 60 years, he says. How many cases went to court and ended in prosecution?

“I have no interest in checking how often charges were brought,” he said. “Such statistics might interest outsiders but it is the task of a state prosecutor to examine the facts of cases relevant to criminal law.”

Just what of the Nazi era is relevant to criminal law has been a hotly contested issue in Germany since an Allied military tribunal in Nuremberg sentenced senior Nazi war criminals for war crimes 75 years ago.

It would be another 20 years before Germany held its high-profile “Frankfurt Trial”, charging 22 low- and mid-level Nazi officials who worked in the Auschwitz-Birkenau camps.

After decades of collective amnesia among their parents, Frankfurt was the first time many younger Germans heard of Nazi horrors – triggering a bitter inter-generational conflict and the start of Germany’s historical interrogation of its past.

A second, lesser-known legacy of the mid-1960s Frankfurt trials was a decision by the judges – operating under West German rather than international law – to insist on a higher standard of proof from prosecutors.

This meant that a senior camp commander on trial for organising ramp selections of newly arrived prisoners could not be convicted in Frankfurt for murder because prosecutors could not present concrete documentation linking him to concrete killings.

Tightening things up still further was a 1968 reform of the criminal code, and a little-noticed clause adding a 15-year statute of limitations to assisted murder charges.

This meant that any chance to prosecute many Nazi officials – whose crimes did not meet the definition of first-degree murder – had expired eight years previously. The co-author of this legal trick was Eduard Dreher, head of criminal justice at West Germany's federal justice ministry in the 1960s.

Closed ranks

Two decades previously, as a public prosecutor under the Nazis, he was notorious for demanding death sentences for minor crimes but was “deNazified” in 1947 and continued his legal career.

Dreher was one of many senior Nazi officials with key positions in the Bonn republic who closed ranks against investigations and pushed back against energetic public prosecutors like Fritz Bauer.

When the Frankfurt-based prosecutor was tipped off that Adolf Eichmann, the architect of the Holocaust, was living in Argentina, he was so outraged by his superiors' disinterest that he notified Israel instead.

“German society wanted to forget, Eichmann was far away, the legal journals closed ranks, the universities and courts were full of Nazis,” said Goetze.

She puts today’s broader perspective on Nazi-era guilt down to a generation shift, the availability of more detailed historical analyses and a greater respect for survivor testimony.

Germany’s belated push for Nazi-era justice is highly controversial, with elderly defendants and their families accusing prosecutors of instrumentalising them to ease their own guilt.

Nazi hunter Efraim Zuroff of the Simon Wiesenthal Centre disagrees, saying such trials offer closure for survivors and their victims – and educate the public about an era that is retreating over the historical horizon.

“On reparations and political issues Germany did a fairly good job in facing their past, but in terms of justice they did a horrible job,” he said. “These trials can’t make up for it but it is some compensation for a terrible record through the years.”