Nazi criminals, convicted decades later. Is justice served?

When Josef Schuetz was convicted this summer of being an accessory to murder at the Sachsenhausen Nazi concentration camp, it made headlines worldwide. But just as important to generating interest in Nazi war crimes was Mr. Schuetz’s age at conviction: 101 years old.

The judgment against Mr. Schuetz was made possible by legal changes that happened only in the last decade. Those changes similarly resulted in sentences against Nazi extermination camp guard John Demjanjuk at age 91 in 2011 and Oskar Gröning, the “bookkeeper of Auschwitz,” at 93 in 2015.

But the fact that these prosecutions and convictions are only occurring now, roughly seven decades after the Holocaust ended, raises some basic questions: What took so long? And is there justice to be had in prosecuting nonagenarians and centenarians for crimes committed generations ago?

“It’s ridiculously late, and most of the perpetrators are dead,” says Katrin Stoll, historian and Holocaust researcher at the Imre Kertész Kolleg Jena institute in Jena, Germany. “It was the entire German state and the entire German society which participated in the crime. Why did the judicial system take so long to realize that everybody who participated was basically guilty, that genocide cannot be carried out by only a few people?”

Yet, say legal experts, the clear value in prosecuting Holocaust criminals comes embedded with a variety of philosophical reasons. Such criminal trials, even decades later, resurface atrocities that shouldn’t be forgotten. And they also serve up reminders of the dangers of authoritarian power, with the latter particularly resonant at a time when the world’s democracies and authoritarian regimes are again squaring off.

“Trials of this sort are not simply about one person and his position relative to the state,” says Stephan Landsman, emeritus law professor at DePaul University and a Holocaust scholar. “They’re about events that are terrible and soul-shaking and are a tremendous challenge to the rule of law and decent societies.

“Force should not be allowed to win. It’s important to say to the world that there are consequences which sometimes take a long time to be realized. That the law will answer this – rather than force – is a very powerful message.”

“There is no limit”

The playing field has completely changed in Holocaust war crimes prosecution, though the German judicial system didn’t morph overnight. It took decades.

After World War II ended, Nazis simply forged on with their careers and integrated into society. “There was no societal outrage,” says Dr. Stoll, the Holocaust researcher in Germany. “There was this ambivalence, this need to protect one’s own group, a secret solidarity with the Nazi criminals. They were respected citizens of German society.”

The Nuremberg trials of the 1940s captured a handful of top Nazi officials, but concerns about the Cold War overshadowed the effort to bring others to justice. In the 1960s, the Auschwitz trials brought greater public awareness of the Holocaust, but the legal standard required to convict a Nazi war criminal was nearly insurmountable. Courts had to “prove that defendants directly participated in the killing of Jews and, in the case of participation in deportations, that they had known at the time that those deported were murdered in the Nazi death camps,” says Dr. Stoll.

That was very difficult to show. It took nearly seven decades for the German judicial system to change those standards, during the 2009-2011 Munich trial of Mr. Demjanjuk. The judges ultimately convicted Mr. Demjanjuk on the legal basis that someone could be an accessory to murder if they were “present in a place where they knew that murder was taking place,” says Robert Rozett, senior historian at Yad Vashem, the International Institute for Holocaust Research. “And that was enough.”

In the 2022 case, prosecutors only needed to show that Mr. Schuetz was a guard in the Sachsenhausen concentration camp, by linking his birth certificate with information about a guard who worked there from 1942 to 1945.

That change reflects a generational shift in how Europeans have come to understand the events of the Holocaust, says Dr. Rozett. Before, there was a feeling that only a small minority of people were Nazi perpetrators. In reality, individuals had a much more significant role in the persecution of Jews.

Five cases have been submitted to prosecutors for consideration, and a sixth case involving a 97-year-old woman is currently at trial, according to Thomas Will, head of the German federal office responsible for investigating National Socialist crimes. Yet many other individuals currently being investigated will likely never go to trial given the passage of time, says Mr. Will, for reasons such as defendants being unfit to stand trial or the number of eyewitnesses diminishing.

“Thousands” more cases might have been investigated over the decades, according to Mr. Will, if today’s legal interpretation had always been applied.

“You could say we’re in a race against time, but you could say this already for decades,” says Mr. Will. “Some suspects were born in 1880. ... This generation is long gone. We’ve been losing time since the war ended. Yet murder and homicide have no statute of limitations in Germany. The moment we have found offenders, including accomplices to murder, we have to act. Often we hear the criticism that it doesn’t make any sense anymore, or why still bother? There is no limit: We have to pursue it.”

Trials as educational tools

And pursuing a 101-year-old man is “newsworthy anywhere,” says Dr. Rozett. For him, that gets straight to the heart of a handful of reasons that these prosecutions are important.

Certainly, from the point of view of victims and their heirs, there’s an element of the serving of justice. “I mean, people whose family members were killed in Sachsenhausen, I would assume that this gives them some sort of feeling of closure,” says Dr. Rozett, of the 2022 conviction of Mr. Schuetz.

Yet the theories of punishment generally recognized for criminal prosecutions – deterrence, incapacitation, rehabilitation, retribution, and restitution – largely have to do with preventing future crimes. Those fade away when a perpetrator is 90 or 100 years old.

And no matter what happens, two-thirds of Europe’s Jewish population was extinguished. “The trials are a gesture, but it’s also just that – a gesture,” says Lorie Quint, a museum educator whose family members were murdered in the Holocaust. “Six million Jews are dead. The actual victims are no longer alive to speak for themselves – and their descendants cannot adequately represent them, even if any had been in the courtroom watching these trials.”

The German criminal trials perhaps show greater value in their public signaling.

“When a trial like this gets into the press, it has a public educational aspect to it,” says Dr. Rozett. “Trials are important venues for the presentation of history, even though a trial is not a history book, and a trial is not an archive. But it still presents a part of what happened, and it uses documentation and sometimes brings new testimony or new documents to light.”

There’s also a criminal trial’s ability to reflect and affirm societal values at hand. “Remember, prosecutors are part of the political framework of a government, and they are not independent actors,” says Dr. Landsman, the law professor. “They act as agencies and have political responsibilities and are under some political control.”

For Josef Schuster, head of the Central Council of Jews in Germany, it’s a clear question of not only justice, but also the educational value in showing “once again where antisemitism can lead in extreme cases. They’re important for educating the population.”