Every time Josef Schütz tottered into the Brandenburg sports hall, he surveyed the assembled crowd and announced: “Good morning to all.”
It was no different on his last visit to the hall on Tuesday even though, for the frail 101-year-old in an oversized green shirt and blue striped trousers, it would prove to be a very bad morning.
The centenarian with a grey mane of hair, known to his family as Josi, was found guilty of being a “knowing and willing” accessory to murder on 3,518 counts during three years as a guard at the Sachsenhausen concentration camp in Oranienburg, north of Berlin.
From the start of his trial in October, held over 35 days in a provisional courtroom set up near his home, Schütz insisted he was a victim of mistaken identity. Born in Lithuania, he insisted he had worked as a farm labourer during the war, not as an SS guard. On Tuesday he told the court one last time: “I don’t know why I’m here.”
Judge Udo Lechtermann reminded him of documents from the Nazi elite division — with his name, date and place of birth — discovered in a Moscow archive which lead to his trial. Then there was his parents’ letter, telling friends their son was “with the SS in Oranienburg”.
The court heard how 200,000 people — including Jews, Roma, homosexuals, socialists and other opponents of the Nazi regime — were detained at the “model” Sachsenhausen camp between 1936 and 1945. An estimated 55,000 died in the camp by shooting, forced labour, experiments, hunger and disease, as well as early trials of poison gas.
Judge Lechtermann said the court accepted the evidence as proof that Schütz served in the camp for three years until 1945 and had “supported, willingly, mass extermination”.
If he loses his appeal, Schütz will enter the history books as Germany’s oldest convicted Nazi war criminal. He may be one of the last, too, after a series of similar trials in the last decade.
Nearly eight decades after the Nazi defeat, the Schütz verdict shows how Germany continues to grapple with the political, legal and moral fallout of its disastrous 12-year embrace of fascism.
For many — in particular the last Shoah survivors, their families and relatives of victims — these recent, belated trials and convictions have been a huge source of relief and consolation.
A key figure in making such trials happen is German lawyer Thomas Walter, a leading Nazi investigator and associate prosecutor for survivors and victims’ families in recent trials, including the Schütz case.
“For these people the death of a relative in such a terrible way was a screaming injustice,” he said. “This week’s trial, and others, gave them peace and helped transform injustice into justice.”
That Germany is putting elderly people on trial now, he said, is because of a systemic, staggering failure of the German justice system in the postwar years, “a wilful blindness that lasted decades”.
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By any measure, Germany’s exhaustive effort to examine its crimes remains the international gold standard. But the country’s mature reflection on Nazi-era crimes stands in awkward contrast to its sustained effort not to prosecute Nazi-era war criminals. The trial and prosecution of Josef Schütz was the exception, not the rule.
In November 1945, in the ruins of Nuremberg, the victorious allies put 22 Nazi leaders on trial, found 19 guilty and executed 12. A dozen other similar trials took place in quick succession, again organised by the allied command, covering the fields of medicine, politics, police and others. Justice was swift in the postwar years: a recent analysis by German historian Andreas Eichmüller shows the allies charged and convicted more than 4,000 people for Nazi crimes while German-operated courts, operating in the same period with allied oversight, convicted 4,685 people.
That all ground to a halt after 1949 when Germans (now in two separate states) were handed back control of their country. After a hurried, flawed “denazification process” of mutual exoneration, West Germany shrugged off the allies’ approach for dealing with Nazi criminals and dismissed the international law used at Nuremberg, insisting that courts could only apply the German criminal code.
“This code was created for punishing everyday crime and tailored to individual perpetrators, so it wasn’t suitable for the collective character of mass crimes of the National Socialist state,” argues Dr Eichmüller of Munich’s Documentation Centre for National Socialism. “This criminal code also had a focus on perpetrators that ignored the victims and the needs of survivors.”
On the other side of the Iron Curtain, the self-described “anti-Fascist” East German state had — initially at least — a more robust record in prosecuting war criminals, but often only as part of a propaganda battle with West Germany, which East Berlin framed as the successor to Nazi Germany.
By the 1950s, in Bonn and across West Germany, a postwar restoration was under way: entire generations of lawyers who previously worked for the Nazis were back at work in government ministries and public prosecutor offices, setting legal traps and tripwires to prevent justice ever being done.
In 1963, against considerable opposition, a Frankfurt court tried and convicted “ordinary” people with Nazi crimes, shocking the country. Germany’s federal supreme court moved quickly to ensure this wouldn’t happen again by insisting, in a final ruling, that convictions were only possible if prosecutors could present evidence linking a particular person to particular killings. An almost impossible hurdle to clear, this ensured that countless senior Nazis lived long and untroubled lives. They were long dead when the court finally set aside that precedent in 2016.
Another legal stroke came with the 1968 reform of the West German criminal code. A little-noticed sub-clause created a 15-year statute of limitations to the charge of accessory to murder — a common charge in Nazi criminal cases.
Once adopted, countless Nazi criminals whose crimes did not meet the definition of first-degree murder learned that the window to charge them had retrospectively closed: eight years previously.
One of the men behind this legal sleight of hand was Eduard Dreher, a key figure in West Germany’s federal justice ministry. As a young public prosecutor in wartime Austria, Dreher, whose name literally means “turn” or “twist”, demanded death sentences in his cases, including in the case of a hungry mother who stole food.
One reason why West Germany’s postwar system of legal subterfuge and sabotage was successful is because it chimed with public opinion; in 1963 some 50 per cent of West Germans polled agreed that the time had come to “finally draw a line under the past”.
“The law was deliberately interpreted in a way so that almost no one could be punished,” says Eichmüller. “If you wanted a career as a prosecutor you didn’t speak out. Very few had the courage to air contrary views.”
One of the honourable exceptions was the Frankfurt public prosecutor Fritz Bauer, who learned in 1957 that Adolf Eichmann, the architect of the Holocaust, was living in Argentina. Aware of active Nazi informer networks inside the German civil service, and outraged by his superiors’ lack of interest in proceeding, he tipped off Israel instead.
Bauer was a lone voice, insisting in public speeches and books that Nazi trials were not just about punishing individuals but about answering wider questions of complicity.
“Without an answer to the why, without asking about the roots of evil, about the roots of the illness, there is no salvation and no healing,” he argued.
By 1968, beaten down by public apathy and official inertia, Bauer washed down an overdose of sleeping pills with whiskey. After that, prosecutions effectively ground to a halt as successive generations of lawyers and prosecutors assumed that postwar limitations on Nazi-era prosecutions — often put in place by Nazi-era lawyers — were fixed and untouchable.
It was almost four decades before this “can’t-do” attitude on Nazi crimes was shattered: by the September 11th attacks. In a landmark case Germany’s federal supreme court confirmed the conviction of Moroccan-born man Mounir el-Motassadeq for assisting the 9/11 plane hijackers in the US, while living in Germany.
El-Motassadeq made transatlantic money transfers to ringleaders and had no direct involvement in the attacks on New York and Washington, but he was still found guilty of being an accessory to murder.
Tipped off by a US contact, German investigator Walther realised that this ruling could be used to upend the precedent for Nazi-era crimes.
“There was no change of German case law but in how the law was interpreted,” he said. “Entire generations of German lawyers, including myself, were trained to simply accept what our superiors told us, that there were few legal possibilities for prosecutions, so no one tried.”
Determined to test this new precedent, Walther and another investigator, Kirsten Goetze, set their sights on John Demjanjuk.
In 2009, Germany requested the Ukrainian-born 90 year-old’s extradition from the US on nearly 28,000 counts of acting as an accessory to murder: not based on direct evidence of involvement in killing, but because he served as a guard in the Sobibor death camp in Nazi-occupied Poland where an estimated 167,000 Jews were murdered.
After an 18-month trial in Munich, Demjanjuk, who protested his innocence throughout, was found guilty. Though he died in 2012 while the case was on a final appeal, Demjanjuk opened the door to a series of similar cases lead by a new, energetic generation of German prosecutors and judges.
In one such case in 2020, a Hamburg court found a 93-year-old guilty of being an accessory to murder in 5,232 cases for serving as a 17-year-old guard in the Stutthof concentration camp in the final days of the second World War.
Handing down a two-year suspended sentence, Judge Anne Meier-Göring said her belated verdict was “a tragedy which can be traced back to the failure of the German judiciary”.
“Germany has once again made itself culpable vis-a-vis the victims of the Holocaust and the other crimes of the National Socialists,” she said.
With each passing day the number of Shoah perpetrators and survivors diminishes. Nazi hunter Efraim Zuroff, head of the Simon Wiesenthal Centre’s Jerusalem office, says he is aware of eight more cases pending.
“We don’t know how many will yield a trial,” he says, citing lingering structural hurdles in Germany.
Its central office for investigating Nazi-era crimes has a wealth of archives and expertise but was established in 1958 without a prosecution competence.
“Investigators have to transfer cases to local prosecutors, which is a total crap shoot,” says Zuroff. “We can get some prosecutor who is far-right guy and doesn’t give a s**t — pardon my Chinese — and cases can take five years or more.”
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Not all of Germany’s leading Nazi investigators are cheering this week’s verdict. Dr Kirsten Goetze, a key figure in securing the Demjanjuk prosecution, fears that the legal precedent she helped created has — a decade on — become a runaway train of legal overcompensation.
“Five years in prison for Schütz is completely overblown. That’s not justice, that’s a ‘we’re finally doing something, we’re so great’ verdict,” she said. “There’s a huge, belated effort now under way in Germany to make things right but we can’t make things right. The real murderers got away, we let them, and now they are dead as doornails.”
(WEST) GERMAN POST-WAR NAZI INVESTIGATIONS
From 1945 to 2019 criminal investigations for Nazi crimes were conducted against 175,000 named defendants. Of those, a final judgment was issued against around 14,000 defendants. Just over a half (6,676) were sentenced, 5,190 were acquitted while the rest were appealed. In the case of acquittals in Nazi-era cases, most judges said there was insufficient evidence for a conviction. Of the convictions, 60 per cent were for less than one year and 90 per cent for less than five years. Life sentences were handed down in three per cent of cases. Only 17 per cent of all convictions were for homicide. Some 70 per cent of convictions date back to the years of Allied occupation, 1945-1949. — Source: Andreas Eichmüller
