Why We Should Still Care About Prosecuting Nazi Criminals

Jewish women and children from Subcarpathian Rus await selection on the ramp at Auschwitz-BirkenauWomen and children from Subcarpathian Rus await selection on the ramp at Auschwitz-Birkenau. (Photo: US Holocaust Memorial Museum, courtesy Yad Vashem)

Efforts to prosecute Nazi criminals have been on-going since before the end of the Second World War. The first Soviet trials took place in 1943, and starting in 1945, there was a nearly global effort at prosecution. Trials took place throughout Europe, but also, later, in Israel, Canada, Australia, and (in the form of denaturalization hearings) the United States. The vast majority of these trials took place in the first decade after the war, but prominent trials continued in the 1960s and 1970s. These included the 1961 Jerusalem trial of Adolf Eichmann, one of the key Holocaust bureaucrats, and West Germany’s largest Holocaust trial, the so-called Frankfurt Auschwitz Trial, which just this past August marked its fiftieth anniversary.

What is more surprising, however, is that the criminal prosecution of Holocaust perpetrators continues to the present day. In May 2011, John Demjanjuk was convicted in a Munich courtroom of being an accessory to murder (though his conviction was voided when he died while his case was still on appeal). And just this past July, Oskar Gröning was likewise convicted by a German court of accessory to murder for the deaths of at least 300,000 Jews killed while he served as a clerk in Auschwitz. In both cases, the court reasoned that because the death camps existed for the sole purpose of murdering Jews, guards and functionaries who worked in the camps facilitated mass murder, even if they themselves killed no one directly.

This raises the important question of whether it makes sense to prosecute nonagenarians for crimes, however appalling, committed when they were young. While most jurisdictions offer no statute of limitations for murder, the usual justifications for why we punish criminals tend to break down when we try to justify prosecuting in the face of Holocaust perpetrators. Typically, we punish criminals for one of two reasons: deterrence or retribution. In the first case, punishment sends a message: don’t act like this, or you will suffer the same fate. In the second, it is a form of collective vengeance. Punishment inflicts harm on the perpetrator just as he or she harmed the social fabric.

Neither of these justifications really works for Holocaust perpetrators. First, the Holocaust was, like genocide more generally, a political crime perpetrated by the functionaries of a criminal state. Such perpetrators only risk punishment in the event that they lose political power, typically by losing a war. And no one starts a war expecting to lose. (And even when they do lose, the risk of prosecution often remains vanishingly small. Just ask Cambodia’s Pol Pot, who continued to lead the Khmer Rouge for twenty years after their ouster by the Vietnamese army in 1979). So criminal prosecution is unlikely to have much deterrent power for génocidaires. Second, how can one exact retribution for a crime that is as vast and all-encompassing as the murder of an entire people? Sure, you can hang the perpetrators. But each of them can only die once, hardly adequate expiation for the extermination of an entire people, an extermination that destroyed not just individuals but also an entire community and culture. The punishment of individual perpetrators pales in the face of crimes of such magnitude.

So why punish Holocaust perpetrators seventy years later, or even at all? The recent German film, Labyrinth of Lies, offers one important answer to this question. The film, just released in the U.S., is a highly fictionalized account of the origin of the Frankfurt Auschwitz Trial. While the film plays fast and loose with the actual facts of the case, it nevertheless gets to the heart of the moral issues raised by Holocaust prosecutions.

In the film, Johann Radmann, a young prosecutor in 1960s West Germany, begins investigating crimes committed at Auschwitz. Assisted by the journalist, Thomas Gnielka, Radmann overcomes considerable resistance from his colleagues to get the investigation off the ground. (Radmann is a composite character, while Gnielka’s character is based on a real journalist of that name who played a fleeting put important role in providing some key Auschwitz documents to the Frankfurt investigators). In the course of the film, Radmann becomes disillusioned with his investigation, as he discovers just how widespread was the complicity in Nazi crimes. Virtually everyone he knows is implicated in some way. He begins to feel that “no punishment is adequate,” as he tells Gnielka, and he resigns from the prosecutor’s office.

In a somewhat improbable turn of events, Radmann and Gnielka travel to Auschwitz to say Kaddish for the family of an Auschwitz survivor who had been part of the investigation. Gnielka confronts Radmann’s disillusionment, demanding to know how he could abandon the investigation. Radmann replies that since he is unsure how he himself would have acted during the war, he no longer feels in a position to judge others, to “fight for the good cause,” as he puts it. Gnielka replies, “You’re missing the point, Johann. Look around, what do you see?” Radmann replies, “Auschwitz.” “No,” responds Gnielka. “You see a meadow. Trees, barracks, a fence. Auschwitz is in the stories that happened here and are buried here. Without the trial these stories will remain buried and be forgotten…. It is not about punishment. It’s about the victims, about their stories.”

Gnielka is right. One of the main reasons for prosecuting Nazi criminals is that such trials bring out the truth about the Holocaust, especially the truth of the victims’ experience. They are an important way for victims’ stories to be told. Arguably, this is even more important as the victims, like the perpetrators, reach the end of their lives and the world gets ready to confront a future in which there are no longer any Holocaust survivors, only the burden of living in a world in which Auschwitz is possible.

Yet telling stories, however important, is only part of the answer. After all, trials are only one venue for telling the truth of what happened. Stories without punishment can remain unsatisfying, as many who testified before South Africa’s post-Apartheid Truth and Reconciliation Commission discovered. This is why trials are not only about truth-telling; they are about justice. Yet Radmann is right that punishment can never be truly adequate for the crimes of the Holocaust. So what might justice mean then, if it can’t be about punishment alone?

The possibility of legal punishment matters because it is one element in something larger, namely, atonement. Atonement means the expiation of sins, and this goes far beyond inflicting suffering on the perpetrators in the name of their victims. It means offering them the chance to repent and to seek to make right their wrongs. This is a task which – unlike deterrence or retribution – persists so long as the perpetrators live. That many – indeed, the vast majority – of them will refuse the opportunity to make amends, or even simply to express remorse, does not mean they should not be confronted in a court of law with their obligation to do so. Trials are, in this sense, a moral challenge to the perpetrators, as much as they are an opportunity for victims to recount their trauma. As the political philosopher Hannah Arendt pointed out during the Eichmann Trial, Holocaust perpetrators did more than murder millions of Jews; they launched a wholesale assault on the human condition itself. This makes it imperative to confront them with their crimes, and offer them the chance to rejoin humanity by atoning, even if they chose to remain apart. Otherwise, the fabric of human society itself remains torn.

In the end, these two dimensions – story telling and atonement – are related. When Oskar Gröning’s sentence was announced, Auschwitz survivor Eva Mozes Kor told Britain’s ITV that she saw no point in a prison term. “He has accepted responsibility and admitted his guilt. They are trying to teach a lesson that if you commit such a crime, you will be punished. But I do not think the court has acted properly in sentencing him to four years in jail. It is too late for that kind of sentence.” Rather, Kor thought Gröning should have been sentenced to “community service by speaking out against neo-Nazis.”

In other words, the point of prosecuting Nazi perpetrators in their nineties is to offer them the chance to atone for their crimes by telling true stories about them. We might all learn from those histories, and seek to build a better future based on this intimate knowledge of our terrible past.

About the Author

Devin Pendas

Devin Pendas is a historian of Holocaust trials and international law. He is the author of The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History, and the Limits of the Law and the forthcoming Law and Democracy: Transitional Justice in German Courts, 1945-1950, and is the editor or co-editor of several forthcoming books, including Political Trials in History and Theory. He works hard to maintain his faith in the rule of law in a world where it fails all too often.

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2 Comments

  1. Very important issues to bring into international discussion towards Justice. Films and articles are helping this along. I was an interviewer for the Shoah Foundation when they were in the oral history collection phase of that vital work to save documented human stories. Their archive now includes about 52,000 individual accounts of survivors of the 1939-45 massive deliberate murder of so many millions of Jews, Sinti, Roma, Homosexuals, and others in the Nazi killing machine of the Holocaust.

  2. Thanks for your comment. The Shoah Foundation and other oral history projects have done essential work in documenting the Holocaust, especially the voices of the victims. Art–whether movies or literature–have a vital role to play, not just in keeping the memory of the Holocaust alive but in framing how we understand it. I have my students use various online testimonies all the time. They are always deeply moved, but also learn a great deal.

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