The Americans are not the only ones to have shown little interest in bringing Hitler's helpers to trial. There has also been a lack of commitment on the part of Europeans. For instance, the United States would have extradited suspected concentration camp guard Demjanjuk to Ukraine or Poland long ago if those countries had shown an interest in prosecuting him.
The failures of the German judiciary have been the most grievous, however. Even as German investigators are now focusing their attention on the Nazis' foreign henchmen, German accessories to murder were more or less allowed to escape punishment for years. Since the end of the war, German courts have investigated more than 100,000 cases, but only 6,500 of the accused were ever sentenced. "While senior government officials, officers and commanders enjoyed their retirements in peace," says Christiaan F. Rüter, an Amsterdam criminal law professor, "this old man is now expected to pay for everything." Rüter is referring to Demjanjuk.
Both the planners and the henchmen have benefited from an idiosyncratic stance taken by German lawmakers: that it must be established that those involved were motivated by a special desire to commit murder or played a particularly important role at the scene of a crime.
In 1968, the German parliament, the Bundestag, passed a hidden amendment to the law. The decisive passage appeared in the "Introductory Law to the Law on Administrative Offences." It read: "In the absence of personal characteristics, conditions or circumstances establishing the culpability of the offender, the offender's sentence shall be mitigated." In other words, those who committed murder simply because they were following orders -- as was the case with the overwhelming majority of the accessories -- usually got off lightly.
In the first year after the new clause came into effect, proceedings against at least 300 defendants were dropped. These defendants included, for example, planners who had worked at the Reich Main Security Office (RSHA), the agency that essentially organized the murder of Jews. A major case against RSHA senior officials failed, and most of their crimes suddenly came under the statute of limitations.
Erich Nellmann, the Stuttgart chief public prosecutor at the time, fittingly described the problem more than 50 years ago: "Some had the misfortune of being reported to the authorities, while others did not. The sentenced offender knows that many other offenders are living scot-free. He and others perceive this disparity as an injustice." In retrospect, prosecutors have to concede that mistakes were made.
In this sense, it seems almost coincidental that the criminal prosecution of Nazi war criminals is now entering its final round with cases against the smallest links in the chain, namely people like Demjanjuk. "In fact, it's embarrassing," says Rüter.
Reported by GEORG BÖNISCH, JAN FRIEDMANN, CORDULA MEYER, KLAUS WIEGREFE
Translated from the German by Christopher Sultan