No one in the quiet town of Oak Ridge, Tennessee, ever suspected he was a war criminal. Friedrich Karl Berger, known to his family and friends as “Fritz,” had been living in the United States for more than 60 years and was, by all accounts, a model citizen. He was described by his neighbors—including a Holocaust survivor and a rabbi—as having been a family man who, in his dotage, enjoyed spending time with his grandchildren. A 2012 photo from a local newspaper shows him dancing with his wife to Patsy Cline’s “Crazy.” “That is our favorite song!” his wife is quoted as saying “as her left hand makes the sign for ‘love you.’”
But beneath the veneer of the smiling family man, there was a hint of a darker chapter in Berger’s life: the pension he continued to collect from the German government based on his “wartime service.” That service included forcing prisoners at a subcamp of the Neuengamme concentration camp near Meppen to work a “dawn-to-dusk workday” in “atrocious” conditions “to the point of exhaustion and death.” During Berger’s service at the camp, 400 people died from a combination of disease, malnutrition, and physical mistreatment. In the waning days of the war, Berger led prisoners on a two-week death march under inhumane conditions, leading to the loss of 70 lives.
In 2020, a U.S. court found that Berger had been a willing participant in these crimes and ordered him deported to Germany to face the legal consequences he had skirted for decades. Once back in Germany, however, German prosecutors—who considered the same body of evidence the U.S. court had—dropped the case, citing a lack of evidence.
In confronting its responsibility for the Holocaust, contemporary Germany has cultivated a widely lauded “culture of remembrance” that puts its past front-and-center—literally. Berlin’s moving Memorial to the Murdered Jews of Europe is located in the city center, next to the Brandenburg Gate, only steps away from the now-destroyed bunker where Adolf Hitler shot himself. Nazi-era extermination and concentration camps in Germany have been preserved and converted into well-visited museums and educational centers. Holocaust education is compulsory for German schoolchildren. Denying the Holocaust or displaying Nazi symbols remains verboten.
But the closer one looks, the wider the cracks appear in Germany’s carefully constructed reputation for remembrance. Among these cracks are the taxpayer-funded pensions the German government still pays to people like Fritz Berger, which point to an ugly truth about the country’s culture of remembrance: It has often come at the price of justice.
Between 1946 and 1949, the Allies tried roughly 1,600 former Nazis for war crimes in a series of trials, including the well-known Nuremberg trials and the lesser-known Dachau trials. These were very successful: Of those charged, 73% were convicted, and roughly half were sentenced to death or life in prison. But the U.S. interest in prosecuting Nazis soon waned as competition with the Soviet Union intensified and politicians shifted their focus to the nascent Cold War, leaving the fragile West German government to reckon with the fact that many of the experienced officials and bureaucrats within its borders were criminals.
With Germany carved up and occupied by foreign powers and mired in physical and economic ruin, public support among Germans for bringing the Holocaust’s perpetrators to justice was nonexistent. As a practical matter, Germans were focused on rebuilding their own lives.
“The Nuremburg trials were not even perceived by a large part of the population because people were just trying to survive after the war,” I was told by professor Lars Berster, a former judge and criminal law expert at the University of Cologne, in an interview.
As an emotional matter, confronting the horrific crimes that they or their friends and relatives had participated in was simply too painful.
“There was a total moral devastation,” explains Berster, whose own interest in this topic was partly inspired by his grandfather’s memories of serving in the Wehrmacht during the Second World War. “It gradually occurred to the broad public that we committed the greatest crime in the history of mankind.”
“People just tried not to look at this,” Berster says. “People tried to forget.”
In the years that followed, almost all of those directly responsible for the Nazi regime’s crimes settled back into their old lives, peacefully ensconced among friends, neighbors, and even some of their former victims.
“By the mid 1950s, denazification had been completed and a whole series of amnesty laws had been enacted,” says professor Sybille Steinbacher, a Holocaust historian and director of the Fritz Bauer Institute in Frankfurt, whom I interviewed by email. “This was followed by the rehabilitation and social integration of the perpetrators convicted by the Allies and the de facto cessation of legal prosecution.”
Public opinion had, in fact, shifted—just not in the direction of serving justice. As Steinbacher explains, “The majority of Germans saw themselves as seduced and deceived as victims of Hitler and the war, and also as victims of postwar misery and denazification.”
The German public’s reluctance to hold perpetrators of the Holocaust accountable began to change in the late 1950s. Around this time, according to Steinbacher, “[c]riminal investigations against Nazi perpetrators were now taken up and systematized. The Cold War and, in particular, the political pressure coming from [East Germany] played a role in the development, but the need for it was also seen in West German society.”
In 1963, Frankfurt prosecutor Fritz Bauer, who had been briefly interned in a concentration camp himself during the war, brought charges against 22 defendants for crimes committed at the Auschwitz concentration camp in Poland in what became known as the Frankfurt Auschwitz trial.
“The importance of the trial,” Steinbacher says, “lies in the fact that it was the first time that a German court established how the mass murder in Auschwitz took place and gained a clear picture of the crimes organized by the SS by division of labor.”
Though the trials generated enormous publicity, they became notorious for the anemic sentences handed down to those convicted. SS-Obersturmfuehrer Franz Lucas, for example, was found to have aided and abetted the murder of several thousand people on four separate occasions when he worked on the arrivals ramp in the camp, selecting victims to die in the gas chambers or “sparing” others by sending them to work as slave laborers. He received a sentence of three years and three months in prison. Then on appeal, his sentence was overturned, because although he willingly participated in making selections for the gas chambers, the court accepted his defense that he only did so out fear that he would have been in “imminent danger to life and limb” had he refused. To this day, there is no evidence demonstrating that any concentration camp guard was ever in “imminent danger to life and limb” for refusing to participate in such crimes.
Then there’s SS-Obersturmfuehrer Karl Hoecker, now infamous for having kept a photo album depicting scenes of smiling Auschwitz guards participating in sing-alongs and other social activities at Solahuette, the SS resort located about 40 kilometers from Auschwitz-Birkenau. As a senior official at Auschwitz, Hoecker was found to have participated in the murder of a total of 3,000 victims. He received a prison sentence of seven years and was released after five, going on to work as a bank clerk.
In one of the more astonishing cases, SS-Untersturmfuehrer Hans Stark admitted to personally pouring Zyklon B into a gas chamber that held between 200-250 Jews. In a statement, he described what happened next:
As the Zyklon B—as already mentioned—was in granular form, it trickled down over the people as it was being poured in. They then started to cry out terribly for they now knew what was happening to them. I did not look through the opening because it had to be closed as soon as the Zyklon B had been poured in. After a few minutes there was silence. After some time had passed, it may have been ten to fifteen minutes, the gas chamber was opened. The dead lay higgledy-piggledy all over the place. It was a dreadful sight.
Stark received a 10-year prison sentence, and was released after three.
Historians estimate that up to a million people participated in carrying out the Holocaust. Between 1945 and 2005, 140,000 cases were brought against Nazi criminals in German courts. Of those 140,000 cases, 6,656 resulted in convictions—a conviction rate of less than 4.8%. Of those convicted, 75% received prison sentences of between two and five years, a slap on the wrist.
Considering these numbers, it is hard not to conclude that, however else the country might have tried to atone for its past, Germany’s attempts have not included legal justice for Holocaust victims.
“The magnitude of the crimes, and the number of people who took part in them, facilitated them, relative to the number who ultimately were prosecuted, and then the smaller number who got convicted, and the even smaller number of people who got serious sentences makes it, at best, a measure of justice,” a U.S. Department of Justice official familiar with the prosecution of Nazi criminals told me in an interview. Then the official corrected himself, quickly adding: “No, it’s been wholly inadequate.”
How did this happen?
In the years immediately following the war, while the Allies pursued an official program of denazification, a quiet, coordinated effort began in West Germany to reinstall former members of the Nazi regime.
“After one or two years, there was very quickly a network established where those who were already in office helped former Nazi party members flock into government and government institutions,” I was told by professor Christoph Safferling, chair of the criminal law department at Friedrich-Alexander-Universität Erlangen-Nürnberg and co-author of the Rosenburg Files, a 2016 report commissioned by Germany’s Federal Ministry of Justice to investigate the role of former Nazis in the West German government.
These efforts were hugely successful. According to the Rosenburg Files, between 1949 and 1973 some 53% of the Ministry of Justice’s staff born before 1927 were former members of the Nazi party. More disturbingly, 20% were former members of the Sturmabteilung, the SA.
“If you think about what the SA actually stands for,” says Safferling, “it’s really a paramilitary group, starting street fights, and in 1938, Reichskristallnacht, where they were the most pressing part of the violence. If you were a member of the SA, it was not by accident.”
Safferling says these statistics, startling as they might be, actually undercount the influence of the Nazi party on the postwar West German justice system.
“Many of the former, highest, most senior judges in the German Reich were not Nazi party members. Why? Because they didn’t need to for career purposes. In 1933, they were already the most senior judges. So they continued to work in their positions and of course they made friends with the National Socialist regime.”
After the war, this network of judges and former Nazi lawyers in the new West German government quickly set up roadblocks to prosecuting Nazi criminals that endure to this day. In 1950, the Bundestag passed a general amnesty law for former Nazis. The drafters of the law had taken the text of Hitler’s 1935 general amnesty law, copied it word-for-word—while omitting the specific “Fuehrer provisions”—and passed it as new legislation.
In 1954, the West German government passed another amnesty law—this time, the law applied specifically to crimes committed at the very end of the war, including the death marches and mass killings of concentration camp inmates perpetrated as the Allies advanced into Germany.
“The amnesty in 1954 was legitimized by this random confusion that was all around at the end of the war. I don’t really understand the concept,” says Safferling, “but that was the case.”
In 1968—three years after the conclusion of the Frankfurt Auschwitz trials—the West German government made its most aggressive move yet to prevent the prosecution of Nazi criminals when it passed a law time-barring, with retroactive effect, most Nazi crimes. Then, in a famous court case considering the scope of the new law, a panel of judges interpreted it as broadly as possible, presumably in order to prevent as many prosecutions as possible.
“The panel that decided that case consisted of five judges from the Bundesgerichtshof, and four of them were Nazi party members,” says Safferling. “The one who actually wrote the opinion was a wanted war criminal in Magdeburg, in East Germany. He definitely had an interest in getting rid of these cases and to justify his own doings by applying a very limited jurisprudence. These judges would always exculpate themselves.”
Taken together, the amnesty laws, the 1968 time-bar law, and the decision of the Bundesgerichtshof closed the door on prosecutions for most Nazi crimes, but the door was not completely shut. There was still one crime that former Nazis could be charged with in German courts even in spite of the recently constructed obstacles: murder.
There are two ways to charge someone with murder under German law. The first is as a perpetrator. This isn’t easy. In order to charge a German citizen as a perpetrator of murder in a Nazi camp, prosecutors need concrete evidence that the defendant personally murdered someone. In the context of the Holocaust, this presents an obvious hurdle.
“In every normal criminal case, you have a scene of the crime,” explained Israeli prosecutor Michael Shaked in The Devil Next Door, a documentary series about the Nazi camp guard John Demjanjuk. “But the Nazis, they have burned and destroyed most of the evidence. The same goes for eye witnesses—most of them were exterminated by the Germans.”
It has thus proven all but impossible to charge former Nazi criminals as perpetrators of murder in postwar German courts.
The second way to charge someone with murder has to do with the German legal concept of “accessory to murder,” and it’s roughly analogous to accomplice liability in common law jurisdictions like the United States, but with one crucial difference: In the United States, an accomplice to murder faces the same degree of guilt and punishment as the murderer. This means that if the murderer faces life in prison, the accomplice can also face life in prison. In Germany, by contrast, an accessory to murder does not face the same degree of guilt or punishment as the murderer. The maximum sentence that an accessory to murder can receive in Germany is 15 years in prison.
This is one reason for the lenient prison terms Nazi criminals have historically received. Another reason, as Berster explains, is that the sentencing for any criminal convicted of any crime in Germany is not based on the “scale of the legal wrong that has been committed, but the individual ‘blameworthiness’ for the commission of that wrong.”
“Blameworthiness,” Berster explains, is not a concept found in Anglo-American or even international law. “Blameworthiness means, ‘To what extent can this wrong really be attributed to an individual person?’ And there are a lot of mitigating factors to be considered here.”
One such mitigating factor, German courts have repeatedly decided, was the brutality of the Nazi regime toward Germans. As Berster recounts, “All those—especially in the first Auschwitz trial—who sat on the judges’ bench had experienced the war. And the presiding judge had been a judge on the Erbgesundheitsgericht—the so-called ‘Eugenic Court’—and a military court. All of them had a sense of how extremely difficult it is to oppose such a regime.”
Under these conditions, Berster posits that “maybe the blameworthiness of the crime is a little less—or a lot less—than under normal conditions. And I think that ultimately contributed to the relatively mild sentences.”
In the Nuremburg trials, a defendant’s participation in the Nazi regime helped establish his guilt; under postwar German law, it let him off the hook.
“The principal approach of the German judiciary was to say there were only five perpetrators—Hitler, Himmler, Goering, Goebbels, and maybe one or two others—and all the others were followers, all the others were aiding and abetting. This is a great theory because you minimize the appreciation for National Socialism of millions of people,” says Safferling. “You exculpate everybody.”
Even in cases where the guilt of defendants was not in doubt, German prosecutors employed twisted legal reasoning to avoid charging anyone not named Hitler, Himmler, Goering, or Goebbels. In one such case from 1970, prosecutors considered charges against members of the Fahrbereitschaft, whose job was to drive people from the arrival ramps to the gas chambers who were too old, frail, sick, or disabled to walk. But prosecutors declined to press charges, reasoning that “[t]he members of the Fahrbereitschaft appear as small ‘stooges’ in the overall assessment of what happened in the Auschwitz concentration camp.” (There is, of course, no “small stooge” defense in German law.)
In another case from 1982, prosecutors investigated members of the Wachsturmbann, who were posted at the arrivals ramp at Auschwitz in order to prevent people from escaping while they were waiting to be sorted into either the gas chambers or labor camps. There wasn’t much to investigate because the records of the defendants were not in dispute. Under Anglo-American law, these men would have been tried as accomplices to murder and likely faced the same punishment as the men pulling the triggers or pouring the Zyklon B.
But German prosecutors declined to even press charges because, they reasoned, members of the Wachsturmbann didn’t actually prevent anyone from escaping. According to the prosecutors, the victims selected for work as slave laborers were by definition healthy enough to attempt to escape; the rest—those too young, old, or sick to work—were too infirm to escape anyway. Therefore, the Wachsturmbann didn’t prevent anyone from escaping, and thus did not contribute to any murders.
Even putting aside moral considerations, this conclusion is both legally and factually wrong. From a legal standpoint, it doesn’t matter whether the victims could have escaped, for the same reason that attempted murderers aren’t acquitted if their victims happen to be wearing bulletproof vests. Moreover, the prosecutors’ conclusion ignored the fact that healthy people were probably deterred from attempting escape by the presence of armed, uniformed men and military fortifications on the arrivals ramp. And considering that many healthy victims selected for slave labor were also eventually killed, the prosecutors’ conclusion was devoid of sound legal reasoning.
In a 2005 case, German prosecutors considered charges against Oskar Groening, the “accountant of Auschwitz,” who was chiefly responsible for sorting and counting money confiscated from new arrivals to the camp.
While Groening’s duties were bureaucratic in nature, he was fully aware of the atrocities taking place. In an interview with the BBC earlier that same year, Groening recounted: “I see it as my task now, at my age, to face up to these things that I experienced, and to oppose the Holocaust deniers who claim that Auschwitz never happened,” he said. “I saw the crematoria, I saw the burning pits.”
Many believed that Groening was finally willing to speak publicly about what he saw and experienced at Auschwitz because he knew that, under German law, he was untouchable.
He was right. After a brief investigation, prosecutors declined to press charges against him because he “did not serve to prevent prisoner escapes.” Preventing escapes, the prosecutors noted, “was the task of the men who held posts in the Wachsturmbann”—the same men who, prosecutors had concluded two decades earlier, also didn’t prevent any escapes.
On Sept. 11, 2001, no one could have predicted that the horrific events in New York would one day influence the prosecution of Nazi criminals an ocean away.
The man who flew the first plane into the north tower, Mohamed Atta, had lived in Germany until the year before. Soon after the attacks, German prosecutors began scrutinizing Atta’s former roommate in Hamburg, a man named Mounir el-Motassadeq. When Atta left Hamburg to attend flight school in the United States, Motassadeq continued paying Atta’s rent and tuition to make it appear that he intended to return to Germany. After a protracted investigation and legal fight, in 2006 Motassadeq was convicted and sentenced to 15 years in prison in Germany on 3,000 counts of accessory to murder—one count for every person estimated to have been killed in the United States on 9/11.
The verdict contrasted sharply with the cases brought against Nazi criminals. For six decades, attempts to bring former Nazis to justice, even on charges of accessory to murder, had largely failed. Motassadeq was found to have acted as an accessory to the murders of 3,000 people on a different continent because he paid one of the murderer’s rent and tuition back in Germany. He also served far more time in prison than the vast majority of convicted Nazi criminals.
Around this same time, Bavarian district judge Thomas Walther, who was on the brink of retirement after a long career, was transferred to the office for the investigation of Nazi crimes in Ludwigsburg. Walther became convinced that there had to be a way to convict the aging Nazi criminals who, since the end of the war, had been virtually untouchable.
Then, thanks to a simple Google search, Walther came across the case that would change German legal history.
The case involved John Demjanjuk. Born Ivan Mykolaiovych Demjanjuk, he was a Ukrainian who, documents showed, had worked as a guard at the Sobibor extermination camp in Nazi-occupied Poland. After the war, Demjanjuk fled to the United States, eventually settling in Ohio, where he found work as an auto mechanic and lived a life that was, by all accounts, completely banal.
In the 1970s, accusations surfaced from survivors of the Treblinka extermination camp that Demjanjuk had been a notorious guard there known as “Ivan the Terrible.” Even by the standards of the Holocaust, Ivan the Terrible’s crimes were particularly galling. He was reported to have nailed prisoner’s ears to walls, gouged prisoners’ eyes out, wantonly maimed prisoners while they worked, and forced them to continue working while they bled profusely from their open wounds. On at least one occasion, he reportedly drilled a piece of metal into a prisoner’s anal cavity and threatened to kill him if he made a sound.
In the 1980s, Demjanjuk was stripped of his U.S. citizenship and deported to Israel to stand trial. The Supreme Court of Israel eventually acquitted him, citing doubts as to whether Demjanjuk really was Ivan the Terrible.
Demjanjuk subsequently returned to the United States in the 1990s, but in 2002, the U.S. Department of Justice moved to strip Demjanjuk of his citizenship a second time, now citing his service as a guard at Sobibor. After a long legal battle, Demjanjuk was again stripped of his U.S. citizenship and deported in 2009 to stand trial in Germany.
But there was a problem. After having extensively litigated Demjanjuk’s case for 30 years, courts in both the United States and Israel had failed to establish that Demjanjuk had ever killed or mistreated a single prisoner. Under Germany’s case law at the time, which required prosecutors to show that defendants had personally committed murder or had committed a “concrete act” that furthered a murder, Demjanjuk appeared to be headed for acquittal.
Thomas Walther decided to try Demjanjuk using a novel legal theory. Demjanjuk’s SS-issued identification card placed him at Sobibor, but Sobibor was no ordinary camp. Unlike other camps with large populations of slave laborers, the vast majority of people who arrived at Sobibor were immediately executed. Most of those spared immediate death on arrival were kept alive long enough to assist with the murder of new arrivals, then were executed themselves.
Under these conditions, Walther argued that Sobibor was a death factory “in which every employee is jointly responsible for mass murder.” His breakthrough was to distinguish, in the eyes of German law, camps used to exterminate people (in which all Nazis present were necessarily complicit) from camps used for other purposes, like forced labor (in which specific perpetrators and causes of death could be viewed as harder to determine). This implicated Demjanjuk, whose actions at Sobibor helped to facilitate the murder of every prisoner killed while he was there, regardless of whether he personally killed any of them.
Walther’s theory worked. In 2011, Demjanjuk was convicted on 28,060 accessory-to-murder counts—one for each person killed while he was a guard at the camp. He was sentenced to five years in prison, and died the following year while his case was on appeal. He was 91.
The Demjanjuk precedent spawned a series of successful new cases against nonagenarian Nazi defendants who, for the previous 66 years, German prosecutors had refused to even charge with a crime, let alone convict.
In 2014, prosecutors finally indicted Oskar Groening, the “accountant of Auschwitz,” who prosecutors had declined to charge just nine years earlier because he hadn’t prevented anyone from escaping. Post-Demjanjuk, Groening’s conviction was all but assured. In 2015, at the age of 93, he was convicted on 300,000 accessory to murder counts and was sentenced to four years in prison. Before his sentence began, he died at the age of 96.
While the Demjanjuk precedent has been a welcome development in the prosecution of Nazi criminals, it still contains significant shortcomings. The most obvious is the lenient sentences. Demjanjuk and Groening were found to be responsible for a combined 328,060 murders, and were sentenced to a combined nine years in prison. Given their advanced ages, neither ended up even serving his sentence.
But there’s a second, more serious shortcoming, one that brings us back to the case of Friedrich Karl Berger. It is uncontested that Berger served as a guard at a subcamp of the Neuengamme concentration camp system from January 1945 to April 1945. In contrast to Sobibor or Auschwitz-Birkenau, however, Neuengamme was a labor camp, not an extermination camp. Prisoners at the subcamp where Berger worked as a guard were forced to build fortifications along the north German coast, including a large wall, antitank trenches, and machine gun emplacements.
To the extent that prisoners at the camp were “killed”—and more than 400 died there—they largely perished as a result of the camp’s “atrocious” conditions, though German prosecutors did identify several “isolated cases” of intentional murder. At the end of the war, as British troops advanced on the camp, guards forced the prisoners on a death march toward the Baltic Sea.
As with most Nazi defendants, no evidence exists to show that Berger personally murdered anyone during his time at the Neuengamme subcamp. However, in view of his service as a guard at the camp, and in view of the atrocities committed at the camp, a U.S. court ordered Berger deported to Germany for “his participation in Nazi-sponsored persecution.” Specifically, the court found that Berger had guarded prisoners specifically to prevent them from escaping during their grueling work shifts, as well as during the two-week death march that resulted in the deaths of 70 prisoners.
In Germany, however, Berger’s case highlighted the flaws in the German legal system’s approach to prosecuting Nazi war crimes. Owing to a quirk in German law, all of Berger’s sworn testimony from his trial in the United States was deemed inadmissible in German courts. Without his testimony, prosecutors couldn’t establish what, exactly, Berger’s role at the Neuengamme subcamp had been.
“There were no witnesses alive who could be named,” explains Berster, who reviewed materials from the case. “All the written documents were inconclusive in regard to these questions.”
This posed a problem for German prosecutors, but it was, of course, self-imposed. Had German prosecutors worked more assiduously to gather evidence and prosecute Nazi criminals in the years immediately following the war, they might have found witnesses who could have spoken to the culpability of the camp’s staff.
But even if Berger’s U.S. testimony had been admissible in German courts, prosecutors still would have faced an uphill battle to convict him of any crime. Because Neuengamme was a labor camp and not a “death factory” like Sobibor or Auschwitz, the deaths that did occur there were technically not “murders” to which Berger could be charged as an accessory.
“Many of those people died of emaciation, they were just not fed properly, they died of exposure, so actually in many cases people died of total neglect and, more or less, crimes of omission—commission by omission,” explains Berster. “That makes it much more difficult to pinpoint the perpetrators.”
After examining the available evidence, German prosecutors therefore concluded: “The U.S. Department of Justice investigation has not linked the accused to any specific killing, in which the accused may have been an accessory.” They dropped the case several months before Berger even arrived in Germany.
That German law currently places ultimate significance on a distinction between camps used for extermination and camps used for other purposes where people were still killed means that the vast majority of Nazi criminals cannot be convicted of crimes in German courts. The numbers bear this out. The Nazis operated a network of some 42,500 incarceration sites, including 30,000 forced labor camps, 1,150 ghettos, and 980 concentration camps and subcamps, among many others. Only six of these sites were explicitly considered extermination camps, and only a handful more—including camps like Stutthof, Mauthausen, Sachsenhausen, and Ravensbrueck—operated gas chambers for mass executions.
The deaths that occurred at the remaining 42,490 Nazi incarceration sites, then, exist in a sort of legal oblivion. These deaths were murders—the victims would not have died but for the treatment, conditions, and circumstances to which the Nazi regime subjected them—but under German law, no one is responsible for them because, in some way, everyone was.
“The crime of aiding and abetting from the German criminal code is not designed to capture systemic mass crimes,” explains Berster. “It is designed to capture ordinary crimes under ordinary conditions. That’s probably the biggest problem, the biggest hurdle, the biggest obstacle to why so many German courts are really struggling with cases like these.”
Berster was quick to point out that, although this is the state of law right now in Germany, courts could still one day apply the Demjanjuk precedent to murders in forced labor camps.
“It is not totally excluded, but in the big cases we have had in recent years, they were all dealing with extermination camps, which made it easier for the courts to decide that criminal aiding and abetting had taken place.”
There is one more wrinkle in the story of the Demjanjuk case. At the time Thomas Walther concocted his legal theory about Sobibor as a “death factory,” he believed it was completely novel. As it turns out, it wasn’t. In two little-discussed cases from the mid-1960s, two different German courts had accepted an early version of Walther’s “death factory” theory, finding the defendants guilty based solely on the fact of their presence and service at concentration camps, without the need to prove that any of the defendants had directly participated in any murders.
Taken together, these judgments might have provided German prosecutors and judges with the legal ammunition they needed to try Nazi criminals under the expanded view of accessory to murder adopted in the Demjanjuk case in 2011. But for 45 years, prosecutors and judges simply ignored these judgments, allowing them to collect dust as Nazi criminals died peaceful deaths, surrounded by loved ones, without ever having faced accountability.
In light of this, it is hard to avoid the conclusion that the impediments to prosecution of Nazi criminals in German courts have always been political, not legal.
“When law enforcement authorities in any country ignore large numbers of suspects and criminals, it means that there is a certain deficit of political will,” says the U.S. Department of Justice official familiar with the prosecution of Nazi criminals.
Now that certain political impediments have begun to ease in Germany, prosecutions of the surviving nonagenarian Nazis are the last opportunity to seek some measure of accountability. But the extent to which these late-stage prosecutions can achieve true justice is up for debate.
“Certainly, one can speak of failures in prosecution,” says Steinbacher. “But it is also important to see the achievements and successes that have been possible under the respective political and social conditions. For some years now, the so-called late prosecution of Nazi perpetrators has been underway, which can still make corrections and additions to this picture, but can no longer change it.”
Germany’s shockingly thin record of Nazi prosecutions may not change, but the country’s political attitudes have. The most conspicuous is the aforementioned culture of Holocaust remembrance.
“The self-critical examination of the Nazi era is part of Germany’s political culture today,” Steinbacher stresses. “That is highly important and absolutely worth preserving.”
In fact, Germany’s culture of remembrance has become so deeply ingrained in its political culture that it received its own section in the new federal government’s coalition agreement, with promises to “make reports from contemporary witnesses digitally accessible,” “improve the restitution of Nazi-looted art,” and to consolidate and modernize funding for the “Youth Remember” program.
But such promises, which German politicians and public figures have learned to make by rote, are not always followed by action.
“I’m not totally unhappy with how Germany deals with its past because it doesn’t stop looking at the past, which is good,” says Safferling. “But of course I think that if you look at justice and criminal justice for the victims, no, that hasn’t been served.”
The most cynical reading of this history is that Germany has been eager to give the impression of atoning for the Holocaust without having to impose consequences on most of its perpetrators. After all, “remembering” requires less sacrifice than reckoning. But even with a more generous interpretation of Germany’s postwar record, its failure to hold Nazi criminals accountable remains a painful reminder that the country’s dedication to Holocaust remembrance has never really bothered with justice.
It’s not clear how much we can expect these dynamics to change.
Earlier this month, Germany became the first country in the world to convict a Syrian official for perpetrating crimes against humanity during the country’s bloody civil war. Anwar Raslan, a Syrian colonel, was charged with 27 murders, the torture of 4,000 people, as well as the rape and sexual assault of detainees. A court in Koblenz convicted him and sentenced him to life in prison.
Raslan was charged with crimes under international law that did not exist during the Holocaust, so these laws cannot be used to also charge Nazi criminals under German law. But his prosecution appeared to many to reflect a starkly different political landscape in Germany, one more eager for accountability and justice than in years past.
Nevertheless, when one of Raslan’s deputies, Eyad al-Gharib, was found in a German court to have aided and abetted the detention and torture of 30 victims, he was sentenced to only four-and-a-half years in prison, down from a maximum of 15. One of the mitigating factors cited in his sentence was that “[a]t the time the offences were committed, [al-Gharib] was integrated in a hierarchical structure where he was under certain pressure to act.”
Zachary Simon is an attorney and writer in Frankfurt, Germany. He has previously worked for the European Court of Justice, the U.S Senate, and the U.S. House of Representatives.