German Court Lets Admitted Nazi Murderer Go Free

“Ex-Nazi Guilty in Wartime Murders,” the New York Times headline ran. “Heinrich Boere, Ex-Nazi SS Member, Convicted For WWII Murders” ran the headline of the AP article on the Huffington Post. The Times of London (in an otherwise informative article, it must be said) even chose to run with “SS killer Heinrich Boere finally jailed at 88.” But the headlines could just as well have run “German Court Lets Admitted Nazi Murderer Go Free.”

For that is, in fact, what happened in a courtroom in Aachen last Tuesday. The court convicted Boere, who has made no secret of his participation in the murders in question, and then let him go free. The New York Times article fails even to mention this fact. The AP does eventually get around to mentioning it, but not before noting, “Though sentenced to death in absentia in the Netherlands in 1949, later commuted to life imprisonment, Boere has managed to avoid jail until now” — as if he was not, in fact, continuing to avoid jail!

Theoretically, the Aachen court sentenced Boere to life imprisonment. But in reality, it appears that Boere’s chances of living out his remaining years as a free man are very good indeed. The Frankfurter Allgemeine Zeitung explains this curious fact as follows:

It remains an open question whether Boere will in fact have to go to jail one day, not only because of the announced appeal of the judgment, but also due to the state of his health. Until his ability to withstand jail time [Haftfähigkeit] has been clarified, Boere will remain a free man, since in the case of a resident of a nursing home [such as Boere] there is no risk of flight or tampering with evidence. The court indicated that years could pass before the sentence is applied.

Boere thus becomes the second Nazi-era war criminal to be convicted by a German court to much international fanfare in recent months — and then to walk out of the courtroom a free man. The first was the mountain division commander Josef Scheungraber, who was found guilty of murder for his role in the deaths of ten Italian civilians in the so-called Falzano di Cortona massacre. (On the Scheungraber case, see my PJM report here.)

Ulrich Maaß is the public prosecutor who asked for the life sentence for Heinrich Boere. But even he appears to accept as given that Boere will never in fact go to jail. Thus, the Germany news magazine Focus reports:

Maaß does not, however, believe that Boere, who still lives in a nursing home in the town of Eschweiler near Aachen, will really have to serve prison time. In the first place, doctors will have to declare him capable of withstanding jail time. According to Maaß, even if this happened, he would certainly not be sent to a normal prison, but at most to a health care facility for convicts [Justizkrankenhaus].

Focus reporter Tim Pröse, moreover, recounts some curious details of a visit he paid to Boere at his Eschweiler nursing home in June 2008:

Then as now, Boere gave the impression of being robust and lucid. He seemed to be recuperating well in the nursing home. Even he could not say what exactly was wrong with him. He talked about an irregular heartbeat and water in the lungs. “But they want to treat me here, they want me to reach one hundred,” he said.

Pröse also notes that Boere attempted to make a joke, referring to a portable-EKG device hanging over his belly as “my pistol holder.” Boere has admitted to shooting three Dutch civilians with a pistol as part of a series of “reprisal killings” undertaken by the German occupation authorities in the Netherlands in 1944.  “Yeah, I got rid of them,” he told Pröse.

As usual when it comes to Germany, of all the English-language reports the brief New York Times dispatch is the most wildly misleading and obfuscatory. In tones more befitting an organ of propaganda or a PR firm than a newspaper, the report begins: “As German authorities pursue suspected Nazi war criminals to the last, a court in Aachen convicted an 88-year-old former SS soldier on Tuesday….” But a more pertinent lead might have been, “As German authorities at last pursue a suspected Nazi war criminal….”

For the story of Heinrich Boere is that of a remarkable evasion of justice in which German authorities  have been complicit for some sixty years now. Perhaps what is most astonishing about this story is the German judiciary’s citation of an edict dictated by none other than Adolf Hitler as grounds for refusing to extradite Boere to the Netherlands!

Boere was born in Eschweiler, Germany, of a Dutch father and a German mother. He moved with his family to the Netherlands as a child, and in late 1940, only months after the German invasion and occupation of the country, he volunteered to serve in the SS. In 1949, he was condemned to death by a Dutch court for his role in the “reprisal killings.” Already before the trial, however, he managed to escape from a prisoner of war camp. He would subsequently flee to Germany, returning to Eschweiler, where he has lived for the last sixty years under his own name. In 1980, after commuting Boere’s sentence to life imprisonment, Dutch judicial authorities requested his extradition. The Frankfurter Allgemeine Zeitung takes up the story at this point:

For two months, Boere was kept in detention. Then the District Court of Cologne, citing a 1943 edict of Hitler, came to the conclusion that the extradition of the former SS man was prohibited. Hitler had determined that “foreigners of German origin” would become German citizens when they voluntarily joined the SS. The Cologne court ruled that this provision could apply to Boere and hence that he could not be extradited. Thereafter, the Central Office for the Investigation of Nazi Crimes in Dortmund did open an investigation against Boere, but it came to the conclusion that the killings were consistent with the principles of international law that obtained at the time.

The New York Times dutifully mentions Germany’s prosecution of John Demjanjuk in its brief report, as if the Boere judgment should reinforce the image of an ever vigilant Germany created by the Demjanjuk prosecution. (On the Demjanjuk case, see my PJM report here.) But it is in fact precisely the differences in the German judiciary’s treatment of Boere and Scheungraber, on the one hand, and Demjanjuk, on the other, that are so striking.

Scheungraber, the 91-year-old former commander of a German Wehrmacht mountain division that herded Italian civilians into a farm house and blew it up, has yet to have been made to serve a day in prison by the German courts. As noted above, Boere was briefly placed in preventive detention following the 1980 Dutch extradition request. Apart from this, the 88-year-old Dutch-German SS volunteer who has talked openly about his past as an SS hit man has yet to have been made to serve a day in prison by the German courts.

John Demjanjuk, on the other hand, was a Ukrainian prisoner of war who was conscripted into service by the Germans and who would almost certainly have died in German captivity had he refused. German prosecutors have yet to adduce any evidence of his concrete conduct at the concentration camp to which he was allegedly dispatched by his German captors. From all appearances, moreover, the 89-year-old Demjanjuk is in far worse health than the elderly German war criminals Scheungraber and Boere. Nonetheless, Demjanjuk has already spent nearly a year in Stadelheim prison in Munich. This is in addition to the more than seven years that he served in Israel for crimes that the Israeli Supreme Court would eventually conclude he did not commit.

“Let them bring me to trial,” Heinrich Boere confidently told Focus reporter Tim Pröse in June 2008. “Nothing at all will happen to me.” Heinrich Boere appears to have known what he was talking about.