Why Germany still pursues justice for victims of Nazis

In 1944, Hubert Zafke was a medical orderly at the infamous Auschwitz-Birkenau death camp. This year, at the age of 95, he was supposed to stand trial for his actions during his time with the SS.

A German court announced Monday that his trial would be suspended for health reasons, the fifth such postponement since Mr. Zafke was brought in front of a judge for a first hearing in February.

The multiple postponements highlight the difficulties of putting former Nazis on trial almost 70 years after the fall of the Third Reich. In spite of the difficulties, German courts have seen a spike in prosecution attempts in the past several years. That uptick reflects a relatively recent shift in the legal framework applied in a decades-old pursuit of justice for some six million Jews killed during the Holocaust.

Zafke is charged with 3,681 counts of accessory to murder, according to The Guardian. Prosecutors allege that his unit worked near the gas chambers that killed hundreds of thousands of Jews and others at Auschwitz-Birkenau. They also claim that by providing medical assistance to SS guards, the medical staff, including Zafke, was culpable in helping the operation of the camp.

For many observers, Zafke, a single medic, represents a mere cog in the Nazi genocide machine. For much of the 20th century, following the Nuremberg trials of Nazi war criminals in 1945 and the trial of Adolf Eichmann in 1961, prosecutors of Nazi war criminals focused on proving a direct involvement in the atrocities committed at the various camps. For decades, guards like Zafke were allowed to remain free because of a lack of proof linking them to specific murders.

"In order to be found guilty of criminal complicity [in the Holocaust], the prosecution had the burden of proving specific involvement in acts of criminal violence against known, named individuals, and that's a very high standard," Ken Ledford, a professor of history and law at Case Western Reserve University, tells The Christian Science Monitor in a phone interview. "It's just very difficult to have that evidence, either in the eyewitness testimony or in documentary evidence."

All that changed with the case of John Demjanjuk, in 2011, a former SS guard who worked at the Sobibór extermination camp in Poland. For the first time, a new generation of prosecutors argued that a guard's involvement at the camp was enough to convict him, despite the lack of evidence linking him to a specific murder. In 2011, the court agreed, ushering in a new wave of prosecution of former Nazis, after such cases had largely dried up in the preceding decades, as the Monitor previously reported.

"At a place that existed solely for the purpose of murdering people, anyone who was involved in carrying out that process was an accessory to the murder that was happening there," Elizabeth White, a historian at the US Holocaust Memorial Museum who helped the US Department of Justice investigate Demjanjuk under immigration law, told the Monitor in February. 

There are not many such criminals left. Those that are, such Zafke, are old and often ill, and some question whether it is even worth the effort after so many decades, arguing that there's nothing that such low-ranking guards could have realistically done to resist becoming caught up in the Nazi system.

"People have said 'Well, these guys who were still alive were really young. They were just small fry,'" said Dr. White in February. "But to the people they helped kill, they were not small fry. They were not insignificant." 

Klaus Kabisch, the judge in Zafke's case, has faced allegations of bias for seeming reluctant to have Zafke stand trial, with prosecutors submitting a motion for him to recuse himself. A higher court overruled an earlier ruling against bringing the case to trial, because of concerns over Zafke's health, according to Agence France-Presse.

"The co-plaintiffs have abandoned all hope that a trial that is anything other than a farce will actually start one day under this presiding judge," plaintiff lawyers Thomas Walther and Cornelius Nestler said in a statement last week.

Dr. Ledford explains that, in spite of the angry remarks by the prosecution, repeated delays like this in the German legal system are not unusual, and recusals like the one called for by the prosecution only happen under extraordinary circumstances. Postponements due to health are common when prosecuting someone as old as Zafke, a major obstacle towards putting former Nazis on trial.

The Zafke trial comes after the three most recent trials of former SS members all resulted in convictions. In addition to Demjanjuk's conviction, Oskar Groening was sentenced to four years in prison, and Reinhold Hanning was sentenced to five; both men were stationed at Auschwitz.

While the sentences may seem short, the German legal system takes into account the condition of those who are sentenced. Since both men are in their 90s and not expected to live much longer, the sentences are considered harsh by German standards, according to Dr. Ledford.

But for many Germans, the conviction of former SS guards is not just about punishing the men responsible, but about educating younger generations about the atrocities committed in the past before the last members of that generation die out.

"Given Germany's crimes of the Holocaust in the Second World War, Germany has an obligation to itself, and to the world, to constantly remain vigilant," says Ledford.

"I think the victims deserve it," he adds.