Old-timers on trial: Postwar Ukraine may learn lesson from Germany's prosecution of Nazi criminals

In December 2022, just a few days before Christmas, the small town of Itzehoe in northern Germany made headlines in the international press. The local court was concluding another trial related to the crimes of the Nazi regime. For the first time in many years, a woman stood as the accused. 97-year-old Irmgard Furchner had served in the administration of the Stutthof concentration camp near modern-day Gdansk from 1943 to 1945. According to the prosecution, she was implicated in the deaths of over 10,000 prisoners during her time at the camp. Throughout the war, approximately 65,000 people, including Jews, Polish partisans, Soviet prisoners of war, and others, perished at Stutthof, some in gas chambers or from lethal injections.

Irmgard Furchner was wheeled into the courtroom in a well-kept elderly lady's wheelchair, wearing a white beret. Her legs were covered with a blanket, and her trembling hand held a medical mask. The lady looked around the room at the people dressed in black robes. In a few minutes, they would find her guilty and sentence her to two years on probation. Since Irmgard had entered the service as a minor, the hearings were held in a juvenile court. This case was unprecedented. It was the first time that charges of complicity in mass murder were brought against a civilian who worked in the camp system on a contractual basis, not a former SS member. The defense argued that 18-year-old Irmgard only performed administrative tasks in Stutthof and had no knowledge of the systematic extermination happening behind its walls. However, the court ruled otherwise. As the secretary to the camp commander, who typed up his orders and letters, Irmgard could not, under any circumstances, have been unaware. Therefore, she was one of those who set the machinery of death in motion. The camp commander himself, SS Obersturmbannführer Paul Werner Hoppe, was sentenced to nine years in prison in 1957 but was released early at the end of 1960.

In the autumn of 2021, when the trial was just beginning, Frau Furchner fled from the nursing home and attempted to go into hiding. The police found her a few hours later in neighboring Hamburg and held her in custody for five days. Over the 14 months of the proceedings, she broke her silence only once. “I regret everything that happened. I am sorry that I was in Stutthof at that time – that's all I can say,” Furchner lamented during one of the last court sessions but never admitted her guilt.

“Small cogs” in the machinery of human annihilation

Germany remains the only country in the world that continues to expose and prosecute Nazi criminals, nearly 80 years after the end of World War II. In other countries, the trials against them ceased long ago, and in some, discussing the nation's involvement in the crimes of the Third Reich is effectively taboo. Attempts to delve into the dark past and acknowledge responsibility for what was done usually face strong resistance in society. “Please note that i.e. the US did not carry out Nazi crime trials after 1949, but deport suspects instead to other countries to be tried,” says German historian Edith Raim. The last judgement of this kind was handed down in 2020.

In the last ten years, five cases against former Nazis in Germany have resulted in sentences. Each of these trials was expected to be the last one: the alleged criminals are already very elderly, and many are unable to participate in the proceedings due to health issues. Moreover, those who receive actual sentences ultimately remain free and die while awaiting appeal.

For example, 102-year-old Josef Schutz, a former guard at the German concentration camp Sachsenhausen, is unlikely to serve his prison term. In June of last year, a court in Brandenburg sentenced him to five years of imprisonment for complicity in the murder of over 3,500 inmates from 1942 to 1945 (the total number of victims during the camp's existence is estimated at 55,000 people). Schutz is the oldest Nazi criminal ever to stand trial.

His defense strategy was largely built on the same arguments as in Furchner's case: the accused was just a “small cog” in a vast mechanism, knew nothing about the atrocities happening in the camp, and therefore should not be held responsible, especially at such an advanced age. Throughout the entire process, Schutz was inconsistent in his statements and even claimed that during the war years, he worked on a farm. On the day of the verdict, he stated that he had been a law-abiding citizen all his life, had not done “anything wrong at all,” and couldn't understand why he suddenly found himself in the defendant's seat.

The prosecution managed to provide documentary evidence that Josef Schutz had served in the SS and had been part of the guard at Sachsenhausen. Furthermore, he “knowingly and willingly” participated in mass killings—specifically aiding in the “shooting of Soviet prisoners of war in 1942” and the murder of inmates using the poisonous gas Zyklon B. He was 21 years old at the time.

Another recent figure in a trial was a former “comrade” of Irmgard Furchner — Bruno Dey, who, during the last few months of the war, was a watchtower guard at Stutthof. During this time, more than five thousand people perished in the concentration camp. In the summer of 2020, a Hamburg court sentenced him to two years of probation. During the hearings, the 93-year-old Dey confessed that he saw “emaciated figures” of inmates and heard their screams from the gas chambers, but he only truly realized the “true extent of horror and suffering” now, thanks to the testimonies of witnesses and historians. At the same time, he emphasized that he felt no guilt: “I personally did not harm anyone. I just stood in the tower and followed orders.” “Do you still consider yourself just an observer, although in reality you were a participant in this man-made hell,” the judge objected when reading the verdict. “All this was just a routine for you.”

One of the main arguments of the prosecution in Bruno Dey's case was the fact that he entered Stutthof as a Wehrmacht soldier and only joined the SS a month later. This means that Dey could have requested a transfer to another unit, but he chose to stay in the camp. According to the defense's claim, he was too immature to make such a decision — he was only 17 years old when he joined the service. However, the court held that young age cannot serve as an excuse. The horrors of Stutthof and other Nazi concentration camps became possible only because hundreds of thousands of ordinary people, similar to the defendant Dey, managed to reconcile with their conscience, concluded the judge.

Another notable trial took place in April 2015 in Hanover. At that time, the “accountant of Auschwitz” Oskar Gröning was sentenced to four years in prison. He was found complicit in the extermination of no fewer than 300,000 Hungarian Jews deported to the largest death camp from May to July 1944. In Auschwitz, the former bank clerk and devoted Nazi Gröning was involved in collecting and sorting the money and other valuable belongings of the inmates. He also supervised the dispatch of confiscated property to the SS headquarters in Berlin. Although personally he didn't kill anyone, the court concluded that through his service, Oskar Gröning supported the viability of the criminal regime.

After the war, Gröning managed to avoid punishment twice due to a “lack of sufficient grounds for suspicion” — first in 1947 and then in the 1980s. Unlike many other Nazi criminals, he openly spoke about his past (particularly in the BBC documentary) and even condemned Holocaust deniers. Nevertheless, during the legal proceedings, Gröning stated that he was willing to share only moral, but not legal, guilt for what had happened. The “accountant of Auschwitz” never spent a day in prison: in 2018, after a series of appeals, he passed away at the age of 96.

However, according to several researchers, the outcome of such trials is of secondary importance. “Symbolic justice is better than none,” says the well-known “Nazi hunter,” Director of the Jerusalem office of the Simon Wiesenthal Center, Efraim Zuroff. Edith Raim adds:

“One could easily say, it is pointless to drag old people to courts and confront them with their crimes of 70 and more years ago. Do these senior citizens pose a danger to society? Clearly not. Yet, for our society it is important to see justice being done, and for survivors it is evidently crucial to have their suffering acknowledged in public.”

Most importantly, each one of these cases serves as an important reminder that there is no statute of limitations on state sponsored atrocities, and that such atrocities could not happen without the participation of thousands of small cogs in the destructive machine, says Lawrence Douglas, a professor of law and jurisprudence at Amherst College, in an interview with The Insider.

Justice: slow yet steady

Not everyone approves of the practice that involves bringing 90-year-olds to trial. The main argument of critics is that the German judicial system is trying to make up for what was missed in previous decades.

Most of the trials of Nazi criminals took place immediately after the end of the war. The main trial took place in November 1945 when 21 high-ranking officials of the Third Reich (including Hermann Göring, Joachim von Ribbentrop, and Julius Streicher, the publisher of the anti-Semitic newspaper “Der Stürmer”) stood before the International Military Tribunal in Nuremberg. Twelve defendants were sentenced to death, three to life imprisonment, and four to 10-20 years in prison.

In the following four years, the occupying authorities of the allied countries — the USA, the USSR, Great Britain, and France — conducted a series of trials against lower-ranking Nazi figures. The most famous were the 12 “Subsequent Nuremberg Trials” that took place in the American occupation zone, involving military personnel, officials, doctors from concentration camps, lawyers, and industrialists. Out of 185 defendants, 24 were sentenced to death, 20 to life imprisonment, and 98 to various prison terms. Concurrently, cases related to crimes against German citizens were being heard in German courts.

After 1949, the investigation of the regime's crimes was finally entrusted to the judicial authorities of a divided Germany. However, their enthusiasm for this task was notably lacking. The envisioned “denazification” by the Allies did not materialize. Former members of the Nazi party and the SS maintained prominent roles within the judiciary of the Federal Republic of Germany, as well as in governmental institutions, ensuring a de facto immunity for their fellow former members. For example, until the 1970s, over half of the Ministry of Justice's workforce were NSDAP members. The initiation of new cases was hesitant, and most defendants received short sentences or were acquitted altogether. Efforts for amnesty and reducing previous sentences were actively pursued — by the late 1950s, thousands of Nazis had been released from prison early and rehabilitated. The majority of ordinary Germans were not inclined towards self-reflection, preferring to close the chapter on the past and focus on the nation's reconstruction. In East Germany, convictions were notably more frequent, but those trials were markedly ideological, often prosecuting individuals for their mere affiliation with the NSDAP.

Additionally, the Ministry of Justice of West Germany deliberately departed from the strategy outlined by the Nuremberg Tribunal. The defendants in such cases were tried not for genocide and crimes against humanity but under regular murder charges (more often for complicity in murder), using the German Penal Code. In practice, this meant that the prosecution had to prove the defendant's direct involvement in specific crimes—a daunting task given the intricate bureaucracy of the camp. The possibilities of prosecution were also limited by the statute of limitations for murder cases (20 years); this was only abolished in the late 1970s. Such an approach allowed many Nazi accomplices to escape accountability. To illustrate, according to the assessment of German historian Andreas Eichmüller, out of 6,500 SS members who served in Auschwitz and survived the war, only 49 were convicted.

The first high-profile criminal trial related to the “Nazi case” in West Germany took place in 1958. In the city of Ulm, ten members of the Einsatzgruppe were tried for their involvement in the mass shootings of over five thousand Lithuanian Jews at the very beginning of the invasion of the USSR. All of them were sentenced to varying terms of imprisonment. The trial had a shocking effect, revealing that the perpetrators of heinous atrocities could evade punishment and pose as law-abiding citizens for years. The primary outcome of the Ulm trial was the establishment of a special government entity in Ludwigsburg—the Central Office for the Investigation of National Socialist Crimes. Its task was to conduct preliminary investigations followed by transferring the cases to local prosecutors. Initially, the office was tasked only with crimes committed outside of Germany.

The materials gathered by the Central Office formed the basis of the charges against the defendants in the trials of 1963-1965, despite strong resistance from the system. Fritz Bauer, the prosecutor from Frankfurt, managed to bring 22 former Auschwitz staff to trial. Seventeen of them received guilty verdicts: six were sentenced to life imprisonment, and the rest received sentences ranging from three to 14 years. The trials lasted for 20 months, during which three hundred witnesses were interviewed, providing a detailed account of the mechanisms of mass extermination of Jews, Roma, communists, and other victims of the regime. Bauer's stance was radical for the time: the crimes in the Third Reich were not committed by isolated sadists who gained power but by millions of citizens who ensured the seamless operation of the terror machine. However, the public did not embrace this idea. According to a survey conducted immediately after these trials, 57% of West Germany's population expressed opposition to further investigations into Nazi crimes.

Bauer made other notable contributions as well. He played a pivotal role in rehabilitating members of the conspiracy against Hitler (previously seen as state traitors), and in exposing and capturing the “architect of the Holocaust,” Adolf Eichmann, who had been hiding in Argentina after the war. Distrusting the German law enforcement, Bauer provided information about Eichmann's whereabouts to the Israeli Mossad, whose agents kidnapped him and transported him to Israel, where he was tried and subsequently hanged.

For the next four decades, attempts to hold former Nazis accountable, with rare exceptions, ended in failure. But then an unexpected breakthrough occurred. In 2007, a trial took place in Hamburg involving a Moroccan national linked to the organizers of the 9/11 attacks. While in Germany, he managed a bank account for one of the hijackers and had knowledge of the impending attacks. The Moroccan was sentenced to 15 years in prison for complicity in the murder of 246 people—the number of passengers who perished in the hijacked flights on September 11th. This case gave new hope to the lawyers at the Central Office in Ludwigsburg. They decided to apply the same logic to wartime crimes and prove that anyone who was part of the Nazi apparatus and knew about the systematic killings was complicit in them.

This new strategy was employed for the first time in 2011 during the Munich trial of John (Ivan) Demjanjuk, a Ukrainian collaborator extradited from the USA. He was accused of aiding in the murder of over 28,000 prisoners at the Sobibor death camp, where he worked as a guard in 1943. The prosecution argued that in order to declare Demjanjuk guilty, it was sufficient to consider the fact of his service at the camp specifically intended for the extermination of inmates, a point the court concurred with. The 91-year-old Demjanjuk was sentenced to five years in prison but passed away in a nursing home while the appeal was ongoing. Nevertheless, this precedent drastically changed the judicial practice, allowing the prosecution of “ordinary” Nazis for mass murders in the absence of direct evidence of their guilt.

In total, according to the Central Office in Ludwigsburg, investigations were initiated against more than 106,000 individuals in West Germany since May 1945 (other sources indicate over 170,000) who were known by name. However, only a small portion of these cases made it to trial. Around 6,500 people were convicted, with 1,155 convicted for murder. Among them, 182 were sentenced to life imprisonment or death penalty, while the majority received various prison terms or fines. Thomas Will, the Chief Prosecutor of the Central Office, told The Insider that German prosecutors are currently handling five more cases involving former camp personnel.

From Nuremberg to Ukraine

The extradition of Ivan Demjanjuk from the United States was achieved by the Office of Special Investigations (OSI) headed by Eli Rosenbaum, a “veteran” of American justice renowned as the most efficient “Nazi hunter.” OSI was established under the U.S. Department of Justice in the late 1970s and was responsible for locating, denaturalizing, and deporting Nazi criminals who had sought refuge in the United States after the war—totaling hundreds of such cases. In 2010, it ceased to exist as a separate entity and was incorporated into the new Department for Human Rights and Special Prosecutions (HRSP). Eli Rosenbaum became its Director of Human Rights Enforcement Strategy and Policy. Last year in June, U.S. Attorney General Merrick Garland appointed him the head of the American team investigating crimes committed by the Russian army in Ukraine.

Under Rosenbaum's leadership, a whole team of specialists is working on gathering and analyzing evidence while advising the Ukrainian side. The fact that the crimes are being committed in real time and that all of Ukraine essentially constitutes the crime scene complicates the work, Rosenbaum says in an interview with Voice of America. However, he adds that Western experts are determined to see the case through to the end and bring the perpetrators to justice:

“They [investigators] succeeded at Nuremberg without those investigative techniques, without DNA analysis and geo fencing and sophisticated communications intercepts and the like. There wasn't even an internet or a cell phone back then. So, imagine how much more we can do with the resources and the techniques that are available to us today in terms of where the investigations stand.”

In September 2022, Eli Rosenbaum testified before the Senate Judiciary Committee with a report titled “From Nuremberg to Ukraine: Accountability for War Crimes and Crimes Against Humanity.” Providing a detailed account of his work, he expressed dissatisfaction with the current law, which only allows criminal prosecution for such charges if the suspect or victim were American citizens at the time of the crime. This legal loophole made it impossible to bring many Nazis and their collaborators who fled to the United States from Germany and other European countries to trial. “Instead, we could only file civil suits against them,” Rosenbaum regretfully stated. “Russian and other war criminals who decide to come to the United States should not have a chance to similarly escape punishment and find refuge here.”

Legal changes were not long in coming. In early January, Joe Biden signed the Justice for Victims of War Crimes Act, expanding the jurisdiction of U.S. courts regarding such acts. In particular, the Department of Justice will now have the authority to prosecute those involved in violence in Ukraine who happen to be on U.S. soil, including Russians.

Eli Rosenbaum acknowledges that it may take many years before justice is achieved, but his work at OSI has taught him patience: “We will be relentless,” he stated in an interview with The Guardian. “[Our] message to perpetrators or would-be perpetrators is: if you act on criminal orders or issue criminal orders, you may well have to spend the rest of your life looking over your shoulder.”

To set the wheels of justice in motion regarding war criminals, political will is required above all — from the nation that was victim, the aggressor nation, or the international community, say experts interviewed by The Insider.

“When the Central Office was founded in 1958, it was precisely the act of political will of all German federal states,” explains Thomas Will, “This political will was confirmed a few years ago when it was decided that the investigation of Nazi crimes would continue as long as it was possible to find the surviving perpetrators.”

Nuremberg established the powerful precedent that heads of state and leading functionaries and military leaders can be held personally responsible for launching a war of aggression, for war crimes, and for crimes against humanity, says Lawrence Douglas, a professor at Amherst College. The Allies were dealing with a defeated nation and a state that had essentially ceased to exist:

“The fact that the Allies occupied Germany made arresting former leading Nazis and gathering relevant evidence less of a problem. Things obviously are much more complicated when the alleged criminals remain in positions of state power.”