Since 1945, the effort to bring Holocaust perpetrators to justice has redefined our understanding of state-sponsored evil
By
On
July 23, a German court convicted Bruno Dey as an accessory to the
murder of 5,230 people. Mr. Dey had served in the SS during World War II
as a guard at Stutthof, a lesser-known Nazi concentration camp located
outside of Gdansk, Poland. Bizarrely, because the 93-year-old defendant
had begun his guard duties when he was just 17 years old, he was tried
in juvenile court. Partly for this reason, he received a lenient
sentence of two years, suspended.
Mr.
Dey may be the last person to be convicted for taking part in the
Nazis’ annihilation of six million European Jews. The philosopher Hannah
Arendt once described the Holocaust as a crime that “oversteps and
shatters all legal systems,” but that didn’t stop prosecutors in dozens
of nations from laboring long and energetically to bring its
perpetrators to justice. Some of the most important trials of the last
75 years include the Nuremberg trial of the major Nazi war criminals,
the first international criminal proceeding in history, in 1945-46; the
1961 Jerusalem trial of Adolf Eichmann, the logistical mastermind behind
the deportation of Jews to SS killing centers; the 1987 French trial of
former Gestapo officer Klaus Barbie, the so-called “butcher of Lyon”;
and the multiple trials of John Demjanjuk, a former guard at the Sobibór
extermination camp who was convicted by a Munich court in 2011, in the
last Holocaust trial to garner international attention.
These
famous cases represent only a few of the many criminal trials that
touched on the crimes of the Holocaust. Poland alone conducted some
40,000 trials and convicted over 5,000 German and Austrian nationals.
Trials took place in every European country that had fallen under Nazi
rule, from Norway to Albania—though it’s impossible to say exactly how
many of these cases directly addressed Nazi extermination.
Whatever
the exact number, the effort to do justice to the crimes of the
Holocaust demanded great legal creativity. Western legal thought had
long viewed the state as the ultimate guarantor of safety and order; the
idea that a developed state might itself turn criminal seemed
unimaginable. Yet under Hitler, the German state did just that, becoming
the agent of criminality and the principal perpetrator of crimes.
To
puncture the shield of immunity that traditionally protected state
actions from legal scrutiny, jurists forged new categories of
wrongdoing. Although Nuremberg wasn’t primarily a Holocaust trial—the
main charge against the 21 defendants was planning and waging a war of
aggression—it was the first trial to involve “crimes against humanity,”
the charge Allied prosecutors used to bring much of the evidence of the
Holocaust before the international tribunal.
A
second great legal innovation was the concept of genocide, coined in
1943 by the Polish-Jewish jurist Raphael Lemkin to describe the Nazis’
treatment of Jews in occupied Europe. Wedding genos, an ancient Greek word for group, to cide,
from the Latin word for killing, Lemkin named something graver than
even mass murder—the “destruction of essential foundations of the life
of…groups, with the aim of annihilating the groups themselves.” In 1948,
with the framing of the U.N. Genocide Convention, genocide became a
crime in international law.
These
new incriminations gave prosecutors powerful tools to pursue the
perpetrators of Nazi atrocities. More recently, they have enabled the
prosecution of mass crimes in Cambodia, the Balkans and Rwanda. The one
nation in which these legal innovations proved less than useful was
Germany itself. Germany enjoys the reputation of having confronted its
Nazi past with impressive thoroughness, but when it came to bringing
Nazi perpetrators and collaborators to justice, the Federal Republic’s
legal system long struggled to get things right.
Germany
reclaimed its partial sovereignty in 1949. Almost immediately, its
courts concluded that because genocide and crimes against humanity
weren’t formally recognized as crimes until after the war, charging
former Nazis with them would be mean applying ex post facto law. This
position, shared by no other European nation, meant that the very
devices designed to facilitate the prosecution of Nazi exterminators
were off the table. As a result, German prosecutors were forced to rely
on charges of ordinary statutory murder to try former Nazis. In cases
where prosecutors couldn’t prove an act of individual, hands-on killing,
successful prosecution was basically impossible.
For
decades, this case law essentially shielded all guards at SS killing
centers from prosecution. Although German courts long indulged the myth
that SS members participated in genocide because they had been forced to
do so, historians have never found a single instance of an SS man being
executed or even severely punished for opting out of genocide.
The
trial of John Demjanjuk marked a historic break with this
jurisprudence. Demjanjuk, known during World War II as Ivan, was a
Ukrainian-born SS collaborator who worked as a guard at Sobibór, the
Nazi extermination camp where some 250,000 Jews were killed by gassing.
Demjanjuk immigrated to the U.S. after the war, became a naturalized
citizen and lived for decades in suburban Cleveland—even after American
investigators learned of his camp service. But while American
prosecutors couldn’t try Demjanjuk for crimes committed overseas, they
could charge him with lying about his wartime activities on his visa and
citizenship applications and revoke his naturalization.
After
decades of legal haggling, Demjanjuk was deported to Germany, where in
2011 a court convicted him as an accessory to the murder of 28,000 Jews.
The court’s decision followed a simple logic that earlier German judges
had rejected: At Sobibór, all the guards acted as accessories to murder
because murder had been the camp’s very purpose. Once it was
established that Demjanjuk served there as a guard, his guilt followed,
regardless of whether the prosecution could prove that he killed anyone
by his own hand.
Armed
with this belated precedent, German prosecutors promptly began
investigating dozens of guards whom the old model had shielded. This
resulted in the conviction of three former SS guards—Oskar Gröning, the
so-called “bookkeeper of Auschwitz” in 2015; Reinhold Hanning, who also
served at Auschwitz, in 2016; and now Bruno Dey.
Some
may doubt the wisdom of trying people for crimes committed
three-quarters of a century ago. The idea that the last Holocaust trial
would end with the suspended sentence of a nonagenarian tried as a
juvenile is certainly a strange denouement.
Yet
in a sense Mr. Dey’s conviction stands as a fitting conclusion to the
era of Holocaust trials, since it reminds us of an essential truth.
While state-sponsored atrocities may be ordered by a few leaders, it is
always largely the work of lowly foot soldiers. In such cases, guilt
can’t simply be measured in terms of hands-on acts of cruelty;
participating in a murderous system is a crime in itself.
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