Germany's Double Standard in War Crimes Trials

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.)

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.