Punishment for Crimes Gone By

Law & Theory Sep 02, 2019

By Owain Guinn
Published 2019-02-22

Decades after the Second World War, Germany is still addressing the legacy of genocide within its legal framework. The attempts to retroactively prosecute Nazis speaks to the persistence of this problem, and legal efforts to resolve it. It has also produced a moral dilemma regarding the purpose of law and punishment. Germany has committed itself to finding and charging surviving former Nazis who actively participated in the Holocaust; including guards, military officers, and death squad members. In the last decade, the number of these men has significantly decreased, and those that remain are often in their nineties. The search has intensified as German prosecutors seek to find these men and bring them to justice before they die of natural causes. However, Germany faces difficulties due to restrictions in its legal code and the uniqueness of the Holocaust.

Examples such as the case of Johann Rehbogen clearly demonstrate the complexity of the situation. A former Nazi, he worked as a guard at the Stutthof concentration camp when he was less than 21 years old. Now 94, he stands trial at a German juvenile court due to his age at the time of the crime. Charged with complicity in mass murder of hundreds of Jews, Poles, and Soviet prisoners, he faces 15 years in prison. However, it is likely that he will not actually serve that time, given his age. Rehbogen himself has denied any knowledge of the atrocities that took place in the camp, thus professing his innocence. The prosecutor of the case, Andreas Brendal, stated that "Germany owes it to the families and victims to prosecute these Nazi crimes even today. That is a legal and moral question."

Another example is that of Jakiw Palij, who may escape sentencing entirely. A former labor camp guard, he has been living in the United States after lying about his history to immigration officials and gaining American citizenship. He had worked as an armed guard in Trawniki Labor Camp in Poland, during the German occupation. His history has been known to the United States and German governments, and it was only after years of negotiations and legal disputes that he was returned to Germany. However, he is unlikely to be prosecuted. Prosecutors do seek retribution, but there is a lack of evidence tying Palij directly to crimes. This case demonstrates the legal difficulties surrounding genocide. Although Palij admitted to the United States Justice Department that he had worked at the Trawniki Camp, German law requires proof that he killed, or assisted in the killing of others. While the White House stated that by serving in the capacity of an armed guard and preventing the escape of prisoners, he assisted in murder, he is still unlikely to face punishment. Palij now lives at a retirement home in Germany, selected by state and federal authorities without consulting the local German officials. American law’s adaptable guidelines for prosecuting any perpetrators of genocide stand in contrast to Germany, where genocide is still defined as multiple counts of murder, which excuses those who were indirectly involved, to allow focus on leaders.

Rienhold Hanning, a former Nazi SS guard, has been charged with accessory to murder of 170,000 people. In the case of his trial, as in many others, there has been debate over the laws used to prosecute former Nazis. They are prosecuted under the ordinary criminal code, used to address normal murders. Because of the attenuation of responsibility of low-level Nazis and guards, they are often found not guilty under current criminal law. This indicates a need for the creation of new laws regarding people involved in genocide, containing provisions that allow for broader prosecution of complacency and accessory to large scale murder. Irene Weiss, a survivor of the camp at which Hanning served, advocates for this implementation. Instead of requiring proof of, for example, directly selecting someone to be killed, merely having served as a guard would be sufficient for prosecution and punishment. This would address the situation of people like Palij, addressed above, who may escape justice.

There is however, understandable justification for the current method of prosecution. Jewish-German Philosopher Hannah Arendt famously wrote in Eichmann in Jerusalemthat former Nazi Adolf Eichmann was simply doing his job within the legal confines of the Nazi regime. Considering the fact that millions of Germans followed the orders of Hitler and high-ranking Nazis, it is hard to argue that almost an entire country had criminal tendencies that could not be present in anyone else. Legal philosophy and psychology have long recognized justifications of adherence to evil legal systems and the potential of anyone to succumb to these influences. Considering the situation in this light, it makes little sense to punish those millions who did no differently than others may have done in the same situation.

Aside from the need for legal reforms to appropriately deal with genocides, the time frame creates a novel moral situation. While few dispute that those on trial played a part in horrific crimes, these crimes took place decades ago. Most of the men at hand are in their nineties, and can only be expected to live for a few more years at most. They are unlikely to go to jail, and thus any sentence or conviction is little more than symbolic. The sentence then is purely retributive, and is totally removed from any restitutive aims. This makes the purpose of prosecution worryingly narrow. For future use, and as precedent for other countries dealing with the lasting results of genocide, German prosecutors like Andreas Brendal must do more to define the purpose of their hunt. What do they wish to accomplish, and what purpose does it serve in a larger context of prosecuting those who were accessories to genocide and other crimes against humanity?

Arendt, Hannah. Eichmann in Jerusalem: A Report on the Banality of Evil. Penguin Books, 2006.