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.