Germany’s Double Standard in War Crimes Trials
Moreover, charges were only brought against Scheungraber by the Munich court inasmuch as he was presumably the commanding officer who ordered the Falzano di Cortona killings. Furthermore, the indictment is careful to specify that Scheungraber acted out of “base motives” [niedrige Beweggründe] and cruelty. This is in keeping with the standard practice of German judicial authorities.
As discussed in my PJM report on the Demjanjuk case, German prosecutors have as a rule refrained from bringing charges against mere “takers-of-orders” within the Wehrmacht or SS hierarchies. Since 1968, moreover, the latter have been the beneficiaries of a sort of general amnesty that was discreetly passed by the German Bundestag. In theory, charges can only be brought against persons who bear special individual guilt by virtue, for example, of having acted out of “base motives” or displayed particular cruelty.
Note that the Munich court raised the bar even higher than strictly required by law by insisting that both criteria be fulfilled in Scheungraber’s case (i.e. he was an officer and he acted out of “base motives.”) As the German legal historian Ingo Müller has shown, this is also in keeping with the general practice of the German courts, which have, as a rule, employed such a narrow conception of command authority as to absolve even officers of criminal responsibility. (For more on this subject, see here.)
The application of these criteria in the Scheungraber case is of obvious pertinence to the case against John Demjanjuk. In the first place, Demjanjuk enjoyed no command authority whatsoever. As a foreign prisoner of war who was conscripted into service by the Germans, he was, as the Dutch law professor Christiaan F. Rüter has put it, the “smallest of the small fish.” In the second place, even supposing he was stationed at Sobibor as charged in the German indictment, nothing at all is known about his individual conduct there.
One further point should be noted about the Scheungraber case. Despite his conviction, Josef Scheungraber remains a free man. His lawyer announced that he will appeal the judgment and the court has allowed Scheungraber to return home to Ottobrun in the interim. John Demjanjuk, by contrast, has now been in German custody for 100 days: this in addition to the more than seven years that he spent in Israeli jails before the Israeli Supreme Court finally acquitted him of crimes allegedly committed at Treblinka.
It remains to be seen whether Josef Scheungraber will ever serve a single day for his crimes. In any case, the German media has announced in virtual unison that this will likely be “the last” trial against members of the Wehrmacht stationed in Italy (Frankfurter Allgemeine Zeitung) or even the last trial against any German Nazi-era war criminal (3Sat television: video here).
So, it would appear that with the symbolic conviction of Josef Scheungraber, German authorities intend to close the book on German war crimes in Italy — or perhaps German war crimes in general.
*Contrary to what has been reported by the New York Times and other American media, Scheungraber is not a “former Nazi officer.” He was an officer in the regular German army. Although this distinction typically escapes American news media, it is extremely important to German discussions of German war crimes during WWII.
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.
“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?
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.
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.
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.
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.
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.
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.