The mid-June conviction of Reinhold Hanning for war crimes in Germany has opened a new chapter in an old debate. How do you seek justice for crimes which may be horrendous, but which are decades in the past – in this case, more than half a century? Is conviction in the legal system the best way? What issues are raised by the pursuit of legal guilt for a crime that happened a long time ago?
Hanning was a guard at Auschwitz-Birkenau, a Nazi concentration camp in which more than 1 million people considered undesirable or enemies of the Nazis were killed. Most were Jews, but disabled people, gays, gypsies, political dissidents and war prisoners were also killed. Henning was convicted of involvement in the murder of 170,000 people.
The charge was accessory to murder. Testimony from surviving eyewitnesses indicated that he took those arriving at the death camp to gas chambers and perhaps made sure they were inside. During the Holocaust, new arrivals were often told that the chambers were showers. In fact, the showerheads contained poisonous gas, used to kill the prisoners.
In the past decade, prosecutors have stepped up the pursuit of Holocaust cases for two reasons. The first is the increasing age of all parties. Hanning is 94, and many of the eyewitness survivors are elderly as well. The second is the wider scope under which people can be deemed guilty. Courts in Germany long accepted an “I was only following orders” defense, in which people who ran the concentration camps could not be prosecuted unless it could be proved they had committed a crime. They could be convicted if they had specifically been seen murdering or assaulting an individual or committing another crime.
With the conviction of John Demjanjuk in 2011, that changed. For the first time, the courts ruled that involvement in a system of mass murder was grounds for conviction.
The Holocaust, one of the most extreme cases of genocide in history, has been a litmus test for the issues involved in the prosecution of mass crimes, but it is far from the only mass crime in history. Unfortunately, there are many cases that raise similar issues. We could go back another century to cite the epidemic of lynching of African-Americans from the late nineteenth century to the 1960s. We could go back to the 1990s to cite ethnic cleansing both in Eastern Europe and Rwanda. We could go back a decade and more to cite sexual abuse within the Catholic Church.
The issues are the same. Many perpetrators and aides to perpetrators are clearly walking free. What is the best method of pursuing justice?
Prosecute to the Utmost …
Those in favor of pursuing perpetrators and those who supported the system argue they are pursuing justice. Without a conviction, essentially, people guilty of crimes against humanity are free and unpunished.
In every court case, part of the reason for punishment is deterrence. Without deterrence, those in favor of maximum prosecution efforts argue, the stage could be set for further incidents of mass murder. Thus, even perpetrators convicted in their last few years serve a symbolic function: You can’t get away with it.
The search for evidence in a court case can also unearth evidence that sheds light on other crimes. Lawyers researching civil rights crimes from the mid-20th century U.S., for example, have found valuable stories and evidence about those who committed and planned murders of African-Americans in the South.
Others argue that prosecution gives the victims a sense of closure. Some prosecutors have even argued that those convicted don’t even have to go to jail. A home arrest apparently has the final symbolic word.
… Or, No Need to Prosecute?
While no one is in favor of letting the guilty walk free, some observers believe that prosecution efforts serve neither common sense nor justice.
Common sense? In the case of the Holocaust, both the still-living accused and the victims are very elderly. Lawyers candidly say that in 10 years, none of them will be left. Given their age, many believe it is a waste of time and state money to bring a legal case. The same is true of many of the cases for which the Holocaust is a proxy.
Justice? Opinions here are very complicated. While some believe perpetrators who have lived the great preponderance of their lives not convicted and not imprisoned did not receive full justice, others think prosecuting them when they are elderly may have unintended consequences.
Why? The fact that elderly and infirm people are being hauled into court to defend themselves – Hanning is in a wheelchair – no matter their crimes, has created a sympathy for them. As the magnitude of the crime fades, the current elderly man looks himself like a kind of victim. That may unravel the point of justice and of deterrence both.
Are the Courts the Best Place?
Some legal commentators are concerned that the current status of Holocaust prosecution is eroding and complicating the status of the courts as arbiters of criminal innocence and guilt. Both Hanning and Demanjuk were convicted based on service to a murderous system, but they did not apparently commit a crime as the court commonly understands it.
Another guard, Oskar Gröning, was convicted for what seems to have been official confiscation of currency from incoming prisoners. Neither committed murder or assault. Many believe such sweeping ability to determine guilt is too large a scope for the court. It may not be the court’s job to adjudicate evil in the minds of men and women.
A Change in Vision and Empathy?
Another set of discussions of reopened court cases focuses not on legal guilt and its ramifications, but on what we might call a simple issue of takeaway. What should people learn from stories of horrendous crimes? What are people learning from the implicit lessons taught by murder, abuse and its punishment or lack thereof?
In many ways, a more ideal world would follow the precepts of the mother of Malinda Edwards, whose husband, Willie Edwards, Jr., was forced to jump from a bridge in a racially motivated attack in 1957. Edwards noted that her mother said, “You can be bitter about this, but that is not what I want you to learn from this. I want you to take everyone you meet, of any race and nationality, and look at them as a person first.”
What think you? Should potentially criminal perpetrators be pursued by any means necessary? Should prosecutors stand down after a certain time has elapsed? What’s that time?
Also, how do we make “never again” a reality? What is the best way to ensure that mass murder, ethnic cleansing, racial bias and sexual abuse stop? More empathy? More education? It’s a tough call.
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