A Judicial Hoax: 90-Year-Olds on Trial in Germany

Oskar Groening (L) a former member of the Waffen-SS who worked at the Auschwitz concentration camp during World War II; Reinhold Hanning (C), former SS guard at the German Nazi Auschwitz camp; Josef Schütz (R), a former guard at the Sachsenhausen camp. Photo: Hans-Jurgen Wege - Pool/Getty Images; Twitter/@AuschwitzMuseum; Twitter/@miketheunderdog

The history of settling Nazi war crimes in the Federal Republic of Germany proved that after World War II there was an actual criminal “protection” system in place. And it functioned effectively for over sixty years.

Yet quite recently, the last surviving participants in the Holocaust crimes have become the focus of show trials and are finally being convicted for complicity in the crime. These are people in their nineties. Recently, German courts found Oskar Gröning, an accountant at Auschwitz, and Reinhold Hanning, an SS guard at the same camp, both guilty. Additionally, 102-year-old Josef Schütz, who was a guard at the Sachsenhausen camp, was also convicted.

All three were convicted of “complicity in a mass murder,” a crime that courts in Germany had not considered as “convictable” in the post-war years. Both Gröning and Hanning ultimately passed away before their sentencing, leaving the somewhat candid impression that the German state simply wanted to assert publicly, "We can admit the justice system has gone wrong. But now we’re fixing our 'mistakes' so you can't blame us anymore. Now we’re ethical and steadfast in our accountability for German guilt.”

And a couple weeks ago, on December 20, 2022, a court in the German city of Itzehoe announced a verdict in the trial against 97-year-old Irmgard Furchner, who worked as a secretary in the Stutthof concentration camp between 1943 and 1945. She’d been an 18-year-old civilian employee, a secretary to the camp commandant, Paul Werner Hoppe. The court sentenced her to two years probation.

The unabashed question seems obvious: why is a secretary from the camp found guilty, while thousands directly responsible for the deaths of millions have been either acquitted by German courts, sentenced to minimal imprisonments, or even allowed early releases or amnesties? In fact, the secretary’s superior, the actual commandant of Stutthof himself, spent only five years in prison and then lived decades as a free man in Germany.

London-based German history professor, Mary Fulbrook, claims that of the nearly one million people involved in mass genocide, 99 percent were never brought to justice. In a six-decade period (1946-2005), only 6,656 people were convicted (of anything). Many of them, however, never even saw a prison cell, because the waiting times for sentencing were ultimately counted towards the sentence itself. And lastly, many were released early due to allegedly ill health.

The German state did everything possible to protect these criminals from justice. How could this be? According to official government reports, for more than twenty years after World War II, around one hundred former members of Hitler's party held very high positions in the German Ministry of Justice. In 1957, 77 percent of the ministry's senior officials were former Nazis, a shockingly higher proportion than during Hitler's actual reign. The preponderance of former Nazi officials in the ministry enabled them to protect war criminals and perpetrators of genocide.

The German criminal justice system made conviction essentially impossible.

The Nuremberg Trials, in which the death penalty and long prison sentences were handed down, were conducted in an international court and ended up bringing to justice only the most significant functionaries of the Third Reich. However, those trials had absolutely nothing to do with the German judiciary. After these processes were completed, the responsibility for further settlements was taken over by the post-war German state.

The Ministry of Justice of the newly established Federal Republic of Germany made a conscious choice not to accept the criteria used in the Nuremberg Trials, rejecting the inclusion of criminal charges used in these trials (e.g. the charge of Crimes Against Humanity) and deciding to intentionally apply only the Criminal Code of 1871. This was a clear, obvious, and systemic protection of the criminals. According to this code, the accusers had to prove beyond a reasonable doubt that the person brought before the court acted on his or her own initiative and was actively aware of the unlawfulness of their criminal act. Without it, they couldn’t be convicted of murder.

So when hundreds of thousands of innocent people were murdered on the orders of Hitler or Himmler, the subordinate state officials –– regardless of rank, orders, or knowledge –– could effectively defend themselves with the argument that they were simply doing their job and following orders from superiors. Paradoxically, the more a defendant admitted to believing in the ideas of Nazism, the less likely he was to be found guilty, because he could “legally” argue that following orders had convinced him he was doing nothing wrong.

In reality, this meant that the SS officer who directed people to the gas chambers could not be convicted of murder or involvement in crime. Nevertheless, if he chose one victim from those standing in front of the gas chamber and shot them in the head –– willingly and of his own individual volition –– he could then be convicted. That sort of legal conviction, of course, demanded credible witnesses of the crime to appear in court, but given the fact that in the vast majority of cases the “witnesses” died after a few minutes in gas chambers –– and fellow officers carefully and consistently concealed that they’d been there at all –– the conviction of this murderer became utterly divorced from possibility or even reality.

The phenomenon of protecting guilty criminals through the parameters of the judiciary system itself encountered no significant, let alone effective, protest in Germany. Accounting for their faults has come to be a fabled pretense by the Germans; there are numerous indications that it was indeed a planned hoax all along.

Von dem Bach-Zelewski, Reinefarth, and Streibel are just the tip of the iceberg.

A perfect illustration of the functioning of this mechanism –– used effectively for several dozen years –– was the case and sentencing of Waffen-SS General Erich von dem Bach-Zelewski. He was responsible for the shooting of 35,000 Jews in Riga, for the massacres in Minsk and Mogilev, for the mass murder of civilians in Warsaw during the Warsaw Uprising (i.e. massacres in Wola and Ochota). However, he was brought to trial and convicted only as late as the 1960s, and not for these crimes at all, but for his participation in the "Night of the Long Knives" and the murder of six German communists. The genocidal crimes committed by him as a prominent SS leader were never brought to trial.

His subordinate was Heinz Reinefarth, whose troops murdered about 50,000 inhabitants of Warsaw in just a few days. Not only was Reinefarth never punished for his crimes or forced to face trial, but he was elected mayor of Westerland on the island of Sylt, and then became a member of the state parliament in Schleswig-Holstein.

SS Captain Karl Streibel, commander of the training camp in Trawniki, responsible for the execution of 6,000 Jews in one day as part of the "Aktion Erntefest” (“Harvest Action”), was acquitted in 1970 by a Hamburg court. Another criminal, Kurt Franz, the famous "Doll,” a sadistic and notorious murderer from Treblinka, was “formally” convicted because he was proven to have murdered many prisoners, but was ultimately released "due to his poor health."

This came to be a characteristic practice of German courts. When there were actual witnesses –– when acquittal remained impossible due to undeniably incriminating testimonies –– the courts released convicts from a guilty sentence under the pretext of illness or old age.

So how is it even possible to explain the fact that a 97-year-old woman was convicted by a German court, even though her only involvement in the crime had been typing?

The intentional and politically convenient precedent of Ivan Demjanjuk.

The turning point was the precedent-setting trial held in Munich between 2009 and 2011. The accused was a guard from the death camp in Sobibór, the infamous Ivan Demjanjuk. He was convicted of “complicity” in 28,000 murders and sentenced to five years in prison. While appealing against the verdict, 91-year-old Demjanjuk died.

The streamlined precedent simply assumed that although the same code had been applied as in all similar cases for over sixty years, this time the conclusions were to be quite different. There was a seemingly intentional 180-degree turn. It was decided that the accused should be found guilty, although he was not proven to have murdered any specific people. For the first time, it was now enough to have performed functions in the camp to be convicted. The key evidence of the German prosecutor's office was an identification card, which confirmed Demjanjuk's training in the SS camp and his assignment to work in Sobibór. In an unprecedented judicial explanation, the sentencing verdict explicitly stated that Demjanjuk was part of the Nazi "death machine.” Treating Demjanjuk in this way was quite a surprise precisely because no one –– not even the top brass –– had ever been treated this way.

What were the reasons? Was this actual accountability? Had new lawyers come to the fore with a renewed and justified outlook? Far from it. My interpretation is simple: the reasons were entirely cynical.

First, Demjanjuk was not German, but Ukrainian. He was an "alien,” the first "stranger" to be tried for German crimes. Second, this “precedent” no longer threatened German citizens, because German camp officials had long since been acquitted or finally died (this later turned out to be a mistake, because a few were still alive). And third, Demjanjuk's case was world-famous, hence the German judiciary wanted to take advantage of the publicity in ending the era of reckoning with a “statement” entirely different in nature from that of the previous decades, the previous trials, and the previous legal “tone.”

In other words, they sought to conclude on a false note. That way, Demjanjuk’s conviction could become the German definition of “justice,” while being an utterly false proclamation that –– contrary to the entire history of post-war settlements –– in Germany complicity in Nazi crimes are to be seen as prosecuted, proven, and punished.

The last act of a six-decade judicial illusion.

It’s precisely this false and propagandistic tone that echoed so clearly in the verdict announced this past December. And in several previous ones, all of which took place after the precedent established by the sentence against Demjanjuk.

Prominent genocidal criminals, such as Wilhelm Koppe –– Himmler's trusted man, co-founder of the death camp in Chełmno on the Ner River, where over 200,000 people were murdered, responsible for the murder of hundreds of thousands of Poles and Jews –– was never even tried, yet a woman typing forms in 1944 was tried and convicted at the age of 97. This contrast illustrates the changes that occurred in this "reckoning.”

The problem isn’t that the court convicted Irmgard, but rather that the conviction punctuates the impression the German judiciary is trying to distort and the truth about its six-decade post-war attitudes it is ostensibly trying to conceal. By convicting for "complicity,” it is seeking to convince the public that the German courts currently appeal to the highest ethical standards. This is to diminish –– to utterly invalidate –– the fact that for more than half a century, the German judiciary had done the exact opposite.

Instead of dispensing necessary justice against evil-doers, they’ve intentionally protected German perpetrators of genocide, war crimes, and crimes against humanity.

Countless attempts have been made to justify the German acceptance of Nazism. Hitler was mesmerizing, the economic realities “screamed louder” than ethical monotheism, defining “Germany” seduced the German people. It’s nothing but nonsense and newspeak.

The disgrace that will always be the “systemic protection of war criminals” by the German state –– fostered by the full acceptance of German society –– will never be explained or justified. And the intentional unwillingness to assign blame and take responsibility for arguably the greatest crime in human history has only continued to evade the Germans, from generation to generation.

Paweł Jędrzejewski