The Nazis who escape justice
Tim Garton Ash
West Berlin Maidanek was the site of a concentration and extermination camp in Nazi-occupied Poland. At least 350,000 people died there. Its staff numbered over 1,000. Yet there Were only seventeen defendants when the Maidanek trial' opened in Diisseldorf in 1975. Now there are thirteen. Soon there will be nine. The state prosecuting counsel have been forced to apply for the release of four of the accused: three female guards and one SS doctor. The prosecution believe that they were directly involved in murdering hundreds of women and children in 1942 and 1943. But there is insufficient evidence to secure a conviction under West German law. A cynic might say that this is not surprising, since the law under which they are being tried dates from 1941. Paragraph 211 of the West German legal code — the `murder paragraph' — demands that a Personal, direct and willing involvement Must be proved beyond all reasonable doubt. After 36 years this is scarcely possible. Former prisoners in the camp cannot today identify their guards with certainty. In the witness box they contradict each other, and themselves, under relentless questioning from the defence. Last month the court heard defence counsel Plead for their clients to be set free. This, since the prosecution has applied for it, is Practically a foregone conclusion. They nonetheless spoke movingly and at length about their clients' spiritual suffering' during the long trial. Frau Rosa Suess, who is accused of having led some hundred children from the Warsaw ghetto on an A usflug — a little outing — which ended in the gas chambers, was repeatedly described US. `decent' and 'humane'. Work in the tailoring sweatshop of the camp, another lawyer blandly remarked, was `very agreeable'. These remarks are models of restraint and good taste compared with some which have been passed in the Dusseldorf courtroom during the last three years. When a Polish Jewess testified that she had been' compelled as a prisoner to carry canisters of Zyklon B gas to the gas chambers a defence lawyer leapt to his feet demanding her instant arrest — for aiding and abetting murder. The same repellent advocate tried to have a German historian disqualified as an 'expert witness' on the grounds that he had studied under a Jewish professor. He had even corresponded with the British historian, Norman Cohn, who, so learned counsel pleaded, although he might not actually be Jewish (by what criteria? the Nuremberg Laws?) has— I quote —`a Jewish sounding name'.
All this is grotesque, deeply offensive to the survivors, and tremendously damaging to the reputation of the Federal Republic abroad. Particularly the East German (GDR) and Polish governments proclaim that — compared with their own records — the prosecution of Nazi criminals in West Germany has been a mockery of justice. How just is this charge? It is a fact that only 6,432 Nazi criminals have been convicted by West German courts. The latest figure given by the state attorney for the much smaller territory of the GDR is 12,861. Only last year a GDR court sentenced three former members of a special police battalion which massacred over 16,000 Jews in the course of a bizarre bicycle ride from Warsaw to the gates of Kiev in the autumn of 1941. Two of them were given life — which in the GDR means life. A third got 14 years. There is no parole for such prisoners. The trial lasted two weeks. There is no reason to believe in this case that it was not a fair trial — although a Western observer has no opportunity to judge for himself. The GDR has the evidence — Soviet and Polish archives have been more forthcoming to East than to West German courts. It has the legal weapons — the law book incorporates many of the provisions of the Nuremberg tribunal concerning 'crimes against humanity'. And it has the political will.
The political will is also present in the Federal Republic, but the legal weapons are not. They are not at hand, ultimately, because the political will was not there when the weapons were forged. For this the allies must be held partly responsible. The authors of the West German legal code maintained the continuity of German law.
This continuity is a myth and its maintenance is a shibboleth. It is absurd to pretend that the natural growth of the body of German law was not broken or deformed by the twelve years of the Third Reich. Take the excellent principle of nulla poena sine lege for example. This is enshrined in paragraph 1 of the legal code and article 103 of the Basic Law. No one may be tried under a law which was not in force when the alleged offence was committed. This is why the Maidanek defendants are being tried under the 1941 definition of murder. But how can the principle be unreservedly applied to a period in which injustice was legalised; in which in theory the Fuhrer's will was the ultimate law and in practice the SS were a law unto themselves? The Nazi travesty of justice in Roland Freisler's 'People's Court' is recorded on film. Has any Nazi judge or lawyer ever been convicted in the Federal Republic for his conduct in the 'People's Court'? I put this question to the state prosecuting counsel in the Maidanek trial. 'Not to my knowledge', was his reply. He struck me as a very knowledgeable man. The law does not exist under which they could be condemned.
That is the heart of the matter. The prosecution in Dusseldorf has an almost hopeless task. The law books and the rules of court procedure give the defence countless opportunities for obstruction and delay.
The traditional virtues of German justice — time-consuming thoroughness, formal precision, reverence for the letter of the law — are here vices. Here the daughter of time is not truth but confusion. If the Bundestag decides that Nazi murders cannot be subject to the Statute of Limitations, this will have little practical importance for the prosecution of Nazi crimes. The number of convictions has diminished, is diminishing, and will continue to diminish.
The Bundestag decision would, however, have great symbolic importance. So would a small decision by the Dusseldorf court: perhaps to take one of the defendants into custody. This would be another indication to world opinion of the will which prevails in the third decade of West Germany's existence — a will which was lacking in the first.
It would make it more difficult for the extreme left to maintain that there is one law for suspected terrorists and another for suspected agents of Nazi terror. And it would be a gesture, at least, to the survivors of the holocaust.
Previous page
