Germany’s Double Standard in War Crimes Trials

A trial recently completed in Munich has a bearing on the case of accused Nazi John Demjanjuk.

August 23, 2009 - by John Rosenthal
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Earlier this month, a German court in Munich found the 90-year-old former Wehrmacht officer Josef Scheungraber guilty on ten charges of murder for his role in a massacre of Italian civilians in the town of Falzano di Cortona in June 1944 during the Second World War.*

The case has invited comparisons to that of John Demjanjuk: the 89-year-old former Ohio resident who was expelled to Germany earlier this year. Demjanjuk is facing charges in the same Munich court on nearly 28,000 counts of murder in connection with his alleged activity as a guard at the Sobibor death camp in occupied Poland. As discussed in my earlier PJM report here, Germany’s avid pursuit of Demjanjuk creates the impression that German authorities are vigilant about prosecuting Nazi war crimes. Especially in light of the defendant’s similarly advanced age, the conviction of Josef Scheungraber reinforces this impression.

But closer consideration of the Scheungraber case shows precisely the opposite to be the case. It reveals the extremely high bar that has been set by German authorities for bringing charges against German suspects in Nazi-era war crimes cases. This high bar contrasts sharply with the extremely low bar that has been used in the case of the Ukrainian-born Demjanjuk: a foreigner who was, in effect, conscripted into service by the Germans after first being taken prisoner by them. (For the details, see my earlier report.)

On further reflection, even Scheungraber’s advanced age, far from being evidence of the vigilance of German judicial authorities, is in fact prima facie evidence of their laxity. Why, after all, did it take them nearly sixty years to bring charges against him? (Today’s Federal Republic of Germany was founded in 1949, after four years of Allied military government. The Munich District Court first brought charges against Scheungraber last year.)

Scheungraber lived for decades as a well-known and even highly-respected citizen of the Munich suburb of Ottobrun. He served for some twenty years on the Ottobrun town council. His past as a Wehrmacht officer in the Gebirgs-Pionier-Bataillon 818 was no secret. He has indeed been a regular participant in the annual memorials held in nearby Mittenwald for the fallen soldiers of the Wehrmacht’s mountain troops. (For background on the Mittenwald ceremony, see “Tragicomedy in the Bavarian Alps” at  American Thinker.)

In fact, Munich prosecutors only brought charges against Scheungraber after he had already been tried and convicted in absentia by an Italian court in 2006. Scheungraber is one of over twenty German citizens who have been tried and convicted by Italian courts in recent years for their roles in massacres committed by Wehrmacht or SS units in Italy during the Second World War. These include, for instance, the infamous Sant’Anna di Stazzema massacre, in which some 560 civilians were slaughtered, over 80% of them women, children and senior citizens.

None of the Wehrmacht or SS veterans, however, has ever served time, since Germany refuses to extradite them. Scheungraber remains the only one to have charges brought against him in Germany. (Detailed information on the German veterans and the cases against them is provided by the German association “Keine Ruhe den NS-Tätern, which militates for the veterans to be extradited or tried in Germany.)

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John Rosenthal’s writings on European politics and transatlantic relations have appeared in English, French, and German in such leading publications as Policy Review, Les Temps Modernes, and Merkur. He holds a PhD in philosophy and he taught political philosophy and classical German philosophy before turning to journalism. More of his work can be found at Transatlantic Intelligencer.

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9 Comments

1. versailles:

Germany is so full of guilt for its horrendous crimes against humanity that they need a scapegoat in Demjanjuk and a token German conviction to feel good again about themselves.

Aug 24, 2009 - 3:21 am 2. David Thomson:

“Although this distinction typically escapes American news media”

The gross ignorance of the MSM is beyond belief. Wehrmacht soldiers represented the “ordinary men” depicted in the work of Christopher Browning. They were often not ideological Nazis—and could even ignore the orders to murder Jews and other so-called inferior people. John Demjanjuk’s case is disturbing. I am not always a fan of Pat Buchanan. His seems anti-Semitic at times. Buchanan’s defense of Demjanjuk, however, does appear reasonable. Why indeed is there so much emphasis on prosecuting this “smallest of the small fish”? Is it to convey the impression that the legal systems of Europe are actually doing something while allowing far worst alleged monsters to continue enjoying their freedom?

Aug 24, 2009 - 7:27 am 3. Germany’s Double Standard on Ukrainians « Cyber Cossack:

[...] the Germans do have a history of considering Ukrainians as Untermenschen and the Demjanjuk prosecution/persecution is no [...]

Aug 24, 2009 - 10:13 am 4. highhatsize:

I hoped that the article would dwell somewhat on the injustice of Demjanjuk’s trial from an evidentiary point of view rather than just in comparison procedurally with Josef Scheungraber.

Jan Demjanjuk is being tried in Germany because Israel’s prohibition of double jeopardy prevents him from being tried there. His prosecutors have forum shopped in order to levy charges against him that could not be brought in the nation whose population is composed largely of the very people that he is supposed to have killed.

This is a travesty. It is a shame that the German constitution does not prohibit double jeopardy as does every other democratic state. I thought they had rid their judiciary of fascist elements.

Aug 24, 2009 - 7:04 pm 5. Peter Montbriand:

This arguement about “command” and officers is sillyness. The Germans had trained long and hard to devolve command decisions to the lowest levels, not just platoon leaders, but even squad leaders. It’s the very reason their military was so tough, they could react faster than any other militaries, due to the devolution of command and decision making. Sometimes orders do come from higher up, for example Hitler’s orders of no retreat that doomed many units on the eastern front and elsewhere, but they were not always followed and never were they grounded in reality. Regardless, Scheungraber, as the officer on the spot, would have been the one giving orders. It appears that Germany wanted to forget about WW2 by May 10, 1945. Such an defeat doesn’t allow one to forget, but our makeup as humans doesn’t mean we don’t wish we could forget.

Aug 25, 2009 - 12:58 am 6. maxschnaunzer:

At least get your terminology straight. Wehrmacht included all branches of the German armed forces, including the SS. If he was army other than SS he was in the Heer.

Aug 25, 2009 - 3:56 am 7. DavidN:

maxschnaunzer: It’s my impression that the SS *wasn’t* part of the Wehrmacht. They had a different rank structure, different TO&E’s for units, were recruited differently, and though the training was the same in principle (the first SS Units were trained by das Heer at the beginning of the war) it changed over time. But Demjanjuk was Heer, part of the Wehrmacht. Definitely not SS as far as I’ve heard, though it would in some ways make sense: the SS recruited more from foreign nationalities than the Wehrmacht did.

The interesting thing about this prosecution is how unique it is. Other than the little Nuremburgs just after the war, where the lesser mass-murderers like Hans Frank were prosecuted, there has been little activity on this front in Germany. One of the other commenters brought up Christopher Browning’s book “Ordinary Men”. That book is based on the “oral testimonies” gathered by the German government regarding this unit in the mid-60s. The Germans apparently guaranteed anonymity for everyone who talked to their oral historians, to the point of recording literally hundreds of murders, sometimes of the elderly or infants, without prosecuting or otherwise punishing anyone. It’s hard for us in the United States to imagine, but Germans are racist towards other nationalities in Europe to an extent that makes no sense to us.

So, I would imagine there are dozens, if not hundreds or even thousands of former concentration camp guards who participated in the deaths of millions. We’re not just talking the six million Jews, by the way: Hitler had murdered hundreds of thousands of other people, and the Germans captured 3.5 million Prisoners of War, and worked/starved almost all of them to death by the end of the war. Demjanjuk was one of those captured; the fact that he volunteered to do something, in order to get out of starving to death in a labor camp is something of a mitigating factor.

The chief difference between Demjanjuk and these other possible defendants is that Demjanjuk isn’t German. Germany, as a result, can show its zeal in prosecuting Nazi-era war criminals, without actually prosecuting any of its own citizens. Since those citizens, and their relatives, have essentially bought into the “I was only following orders” defense for their relatives and countrymen, Demjanjuk is a wonderful surrogate. They can prosecute him *instead* of grandpa, and the international community won’t know the difference.

Aug 25, 2009 - 1:23 pm 8. DavidN:

I meant to say the Germans captured 3.5 million *Soviet* Prisoners of War, and starved or worked most of them to death. They generally treated those prisoners they captured from the Western Allies much better, other than the several hundred who were shot by the SS, immediately after capture, in 1940 and 1944-5.

Aug 25, 2009 - 9:56 pm 9. Roman:

Virtually all German formations on the Eastern Front were commanded to exercise punitive actions (execution of hostages) on an as-required basis. This is attested to by the order issued to this effect by Field Marshal Keitel to his Southeastern Heeresgruppe (Army Group) on 1 Oct. 1941, which is in the Nuremberg War Crimes Tribunal documentation. The order applied to all Wehrmacht commanders, whether officers or NCOs.

As a concrete example of such actions, on Nov. 21, 1942, a Gestapo agent was shot and killed by the Ukrainian resistance in the City of Lviv in Galicia. In reprisal the Germans applied their “100-for-1″ principle by picking 100 foremost Ukrainian civilians throughout Galicia and executing them by firing squad on Nov. 27, 1942. History does not record justice ever having been meted out to the responsible Germans, for this or any other innumerable similar war crimes committed against Ukrainians by the Germans.

Aug 26, 2009 - 9:20 am

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