A trial is going on in Germany this month on a 100-year-old man. The man, who has not been named due to German secrecy laws, has been charged with “deliberately and voluntarily” assisting in the killing of 3,518 people as a former SS guard at the Sachsenhausen concentration camp.
He is far from the only elderly defendant to face trial for crimes committed during the Nazi period. The trial of 96-year-old Irmgaard Furchner, a former secretary at the Stutthof concentration camp, was to begin last month, but was briefly delayed after Furchner fled his care home.
Other recent cases include 89-year-old John Demjanjuk in 2009; Oscar Groening, 93, so-called “Accountant of Auschwitz”, in 2015; Johann Rehbogen, 93, in 2018 (his case was later dropped as he was deemed “permanently ineligible for trial”); and Bruno Day, 93, in 2019. Some, like Furchner, are tried in juvenile courts given their young age at the time of the alleged crimes.
The history of prosecuting Nazi crimes is long and complicated. Despite the crimes committed decades ago, it is important to bring these cases to trial today.
1940s: Allied Planning and Control
In their Declaration of St James’s Palace of 13 January 1942, the Allied governments declared it one of their major wars, aimed at punishing all convicted or responsible for war crimes “through organized justice”.
These intentions were confirmed in 1943 by the establishment of the United Nations War Crimes Commission and the Moscow Declaration on German Atrocities. However, they only covered crimes committed against their own citizens, and none mentioned the systematic killing of Jews.
After the defeat of the Nazi regime, in addition to the establishment of the International Military Tribunal at Nuremberg, the Allies conducted several trials for crimes committed against prisoners held in specific concentration camps on German soil, including Bergen-Belsen, Dachau, Ravensbrück, Sachsenhausen and other. The SS camp commandant, medical doctors, guards and other personnel were involved in these trials. Again, the emphasis was on the atrocities committed against the Allies.
In December 1945, the Allied Control Council gave German courts legal authority to prosecute Nazi crimes committed against German citizens, but they had to comply with allied provisions. It was only after the establishment of the two German states in 1949 that the German courts were freed from allied supervision.
They could now apply ordinary German criminal law, except for the legal category of crimes against humanity determined by the Nuremberg Trials, which was insufficient to deal with state-organized mass murder.
1950s: Half-hearted efforts
Particularly in West Germany, the 1950s were characterized by a sharp decline in investigations and trials of Nazi war crimes. Instead, there were campaigns for clemency and earlier sentence cuts, many of which were led by former high-level Nazis and tacitly endorsed by conservative politicians.
The prosecution lacked any serious or systematic effort, and both German states placed more emphasis on integration and resettlement aimed at stabilizing their war-torn societies, rather than rigorous investigations into Nazi crimes and atrocities. There was widespread silence about the involvement of “ordinary” Germans.
This began to change in West Germany after scandals over the leading positions of the former Nazis. As the 50s progressed, several new trials exposed the magnitude and scale of Nazi atrocities. In October 1958, the Central Office for the Investigation of National Socialist Crimes of Violence was established by state justice ministers, prompting a rapid increase in investigations.
1960s and onwards: more vigorous scrutiny
Adolf Eichmann’s trial in Jerusalem in 1961, which was staged and broadcast around the world, and the Auschwitz trial in Frankfurt (1963–1965) brought the Holocaust back into wider public consciousness. The rebellious younger generation in West Germany began to question how Germany had dealt with its past.
However, under German law, even murder had a 20-year limit, meaning criminals could not be prosecuted if 20 or more years had passed since their crime. This was extended to 30 years in 1969, and abolished entirely in 1979, but even then, the exemption only applies to murder and not to any other offence. Courts required prosecutors to present evidence that suspects were directly involved in a specific murder.
This meant that many “ordinary” SS guards, male and female, whose names and whereabouts were known, could not be charged as there was insufficient evidence of their direct involvement.
Then, during the 2011 trial of John Demjanjuk, a former guard at Sobibor, prosecutors argued that working as a guard at a camp whose sole purpose was to ward off its prisoners, made for a punishment for adjudicating murder. was enough.
To the surprise of many, the court agreed, setting an important legal precedent – now, anyone who played a role in running the machinery of murder can be prosecuted. The doctrine was later expanded to also cover concentration camps, similar to the way crimes were committed in Nazi death camps, where it is often impossible to pinpoint any specific person’s direct involvement in the killings. Had it been implemented earlier, many more concentration camp guards could have been prosecuted.
Prosecutors tried and rushed to bring people to justice. However, despite the headlines in every case, few people have actually prosecuted since Demjanjuk. This is not surprising, given the fact that the crimes were committed almost 80 years ago, and somehow very few of those involved are still alive.
service of justice
Lawyers for the victims and their descendants argue that justice must be done, no matter how late. But it is questionable how much justice they get when non-aged people get jail sentences, which they do not have to fulfill due to ill health.
However, these tests provide a different kind of justice beyond just giving responsibility. As the Allies expected from Nuremberg, these tests could educate the public about the nature and reach of the Nazi regime. This is especially important at a time when anti-Semitic sentiment is on the rise and the number of Holocaust survivors continues to decline.
To many, the atrocities perpetrated by the Nazis appear to be long ago and unrelated to their daily reality. The trials remind everyone that these atrocities took place, that they occurred within living memory, and that not only in Auschwitz but in many places throughout Europe.
Former concentration camp guard Bruno Day said in his 2020 trial:
I want to forget and not go over it again.
This sentiment is undoubtedly shared by many Germans. Recent polls indicate that one in five Germans believe the Holocaust gets too much attention, and about 75% of supporters of the right-wing populist party Alternative for Germany. That the Germans should stop “paying attention to Nazi crimes”.
These late trials force everyone, not only the real perpetrators but also bystanders and younger generations, to “go over it again” – to hear what the victims and their descendants experienced, No matter how bad their memories are. While inconvenient, it is vital to Germany’s democratic political culture.
The greatest justice these trials can provide for all victims of Nazi persecution is to harass and harass all of us and to stop these crimes from being denied, trivial or unimportant.