Richard Rashke - Useful Enemies

There was a self-serving reason for the steadfast refusal of German jurists to update the penal code as France and Israel had done. Without an update, Nazi war criminals had to be tried for regular murder, which excluded “desk criminals” ( Schreibtischtäter ) like themselves.

As one historian aptly put it: “[They] were loath to institute laws that could hold them accountable as lawmakers during the Nazi period.”

Who then could be tried as a war criminal under the 1871 penal code? Only exceptionally sadistic men and women, usually camp guards like Hermine Braunsteiner, who received a life sentence for her brutal murder of women and children. As a result, it was almost impossible to convict the vast majority of Nazi criminals. Under the 1871 statutes, a prosecutor would have to prove beyond a reasonable doubt that the accused both intended to kill someone and was motivated to kill someone. If he just followed orders, he did not necessarily have intent or motive.

In interpreting that definition of regular murder, German judges and jurists crafted two self-serving guiding principles. Befehlsnotstand excused a defendant from the charge of murder if he obeyed a superior officer’s command to kill because disobeying it would have endangered his own life. A favorite defense argument, Befehlsnotstand was responsible for most post-Nuremberg acquittals. The 1871 code also created the principle of excess. In order to be convicted of wartime murder, the defendant had to be an Exzesstäter —someone who had committed excessive acts of cruelty in killing someone, like Klaus Barbie, the Butcher of Lyon.

In sum, the postwar German courts interpreted the 1871 code to excuse abettors like SS men who had participated in a killing process but had not directly committed murder. It also freed those who killed on order without committing excessive acts of cruelty.

German Nazi war crimes prosecutors like Ulrich Maas and Thomas Walther were not happy working within the narrow confines of an outmoded, protective, and unfair code.

“We criminal prosecutors have sometimes felt like road workers who are handed a screwdriver instead of a jackhammer,” Maas complained. He went on to compare prosecuting low-level Nazi criminals to trying shoplifters. “You feel a certain queasiness…. The big economic fraudsters manage to get away scot-free. But the alternative cannot be to let the shoplifter go too.”

For months, the German government resisted the efforts of OSI director Eli Rosenbaum to deport John Demjanjuk to Germany to stand trial. Like Poland, Germany didn’t want to clean up the mess Israel had made of its prosecution of Demjanjuk. Finally, under pressure from its own prosecutors and out of concern about negative publicity, the German government reluctantly caved in.

Government prosecutors assigned to the Demjanjuk case signaled the Munich court that they were willing to reverse the historical legal trend when they charged John Demjanjuk with assisting in the murder of 29,060 Jews at Sobibor. These charges, of course, went beyond the definition of regular murder in the 1871 penal code still in use.

What would the seven judges do? A meld of four legal professionals and three lay people, they were much, much younger than their predecessors and were born after the war. Their memories consisted of, as one observer put it, “islands of knowledge and ignorance.” Perhaps their grandfathers had questionable pasts, but they themselves never had to face the moral choices that World War II had imposed on soldiers and civilians alike.

Would they set a precedent and redefine the law because they viewed it as legally unsound? Would they try to correct the mistakes of the past? Would they lower the bar to include non-German Trawniki men? Would they redefine the word “accessory” to include being part of the killing process without directly killing? Would they commit an act of courage that would repudiate sixty years of German war crimes decisions? Or would they commit an act of cowardice and duck their responsibility to right what the rest of the world viewed as a terrible wrong?

On November 30, 2009, the opening day of the trial of John Demjanjuk, there was a quiet desperation outside the Justice Center on Nymphenburger Strasse, a fifteen-minute walk from the main train station in the heart of old Munich. Four hundred people, mostly reporters and Jews, stood on the stone plaza stamping their feet to keep warm. Some had been there since five that morning. Among them was a large contingent from the Netherlands. The trial about to open was painfully relevant to the Dutch. One third of the ninety thousand Dutch Jews who died during the Holocaust were murdered at Sobibor.

On the street bordering the plaza, cable television vans with names like globesat.tv lined the street. In the plaza itself, there was a dignified bustle as TV crews interviewed spectators in German and English. Handheld video cameras scanned the scene looking for anything of interest. Cameras clicked everywhere, marking the day for posterity. There was no shouting or shoving. No songs or spoken prayers. No lighted candles honoring the photo and memory of a relative murdered at Sobibor. A dozen armed police officers were on hand just in case. They appeared watchful but bored.

Surprisingly, there were no Holocaust deniers or neo-Nazi protesters in the crowd as there had been the previous day in the Munich central train station, where a group of about thirty young men waving beer bottles were shouting “Sieg Heil!” at Christmas shoppers celebrating the beginning of Munich’s popular holiday season.

As a location for a Nazi collaborator trial, Munich, Bavaria, was both a logical and ironic choice. Bavaria had legal jurisdiction in the Demjanjuk case because he had worked in the district as a civilian after the war. Munich was also the womb of Nazism and its beer halls had once reverberated with the sounds of Brown Shirts singing the Nazi anthem. It was in Munich that Hitler ranted his way into German politics. It was in Munich that he attempted a putsch that landed him in Stadelheim Prison—the same prison complex where John Demjanjuk was being held. And it was in Munich where the Holocaust began, with Kristallnacht. Was Germany sending the world a message?

It all began in Munich and it will end in Munich.

Court administrators had grossly underestimated international interest in the historic opening of the trial. They had set aside only sixty-eight seats in the courtroom for the media. There were 270 accredited reporters vying for them. They had reserved the entire gallery of 147 seats for spectators. There were more than three hundred hoping to get in. The court had promised to open a second room with closed-circuit television to accommodate the overflow, as the Israeli court had done, but apparently it decided not to do so, based on a literal interpretation of a German law forbidding cameras in a courtroom.

Security guards admitted four spectators at a time into the gallery. When all the seats were filled, they turned away those already inside the building and shut the doors to those waiting in the plaza. Spectators who couldn’t get in accepted their disappointment with resignation. There was no pushing, shouting, or yelling. Among the rejected were credentialed journalists like the New York Times reporter who was next in line to enter the courtroom when the guards blocked the entrance. The morning session on opening day, November 30, produced little of interest to the spectators. By afternoon, there were no lines outside the Justice Center. The plaza was empty and the courtroom gallery was half empty. It would stay that way for most of the trial.