TIME Germany

How the Last Surviving Nazis Could Be Brought to Justice

The legal standard that allows such cases is less than a decade old

Hubert Zafke, a 95-year-old former member of the Nazi SS who served as a medic at the Auschwitz concentration camp, is the latest to be prosecuted in a push by German authorities to hold the last living Nazis accountable for the Holocaust.

But so many years after the fact, the pursuit of justice in such cases is far more complicated than merely bringing a suspect to court. In fact, the legal precedent that allows such cases is less than a decade old.

Zafke, whose trial is set for Feb. 29 in in Northeastern Germany, is charged as an accessory to the murder of some 3,681 people, according to Reuters. His time at Auschwitz—between 1943 and 1944—would have coincided, as the Telegraph points out, with when Anne Frank was there. But Zafke is not charged with killing people. Rather, he is charged with contributing to their deaths by participating as a staff member at the camp.

Prior to 2009, such a trial would have been rare. At that time, prosecutions of Nazis only involved those who had been directly involved in a specific crime with a specific victim. Prosecutors also had to prove that the crime had been motivated by racial hatred, a high standard that could be hard to establish without witnesses and evidence, said Efraim Zuroff, a historian and coordinator of Nazi war crimes research at the Simon Wiesenthal Center.

That changed after the 2009-2011 Munich trial of John Demjanjuk, a Ukrainian-born guard at the Sobibor death camp. Prosecutors argued that Demjanjuk was guilty because, as a guard at the camp, he too played a part in the killing of the thousands of Jews who died there. Brought into the court room in a wheelchair, the 91-year-old was found guilty and sentenced to five years in prison.

Demjanjuk’s case was supposed to be the last big Nazi trial in Germany. Instead, it set a precedent that continues to be used to this day, leading to further prosecutions of those who were indirectly involved in the Holocaust, most often as guards assigned to one of the six death camps.

“They are in their 90s. This is a very small window of opportunity for the people who are involved in hunting Nazis, so to speak. We are at the very end of this period where this is still possible,” Zuroff said. “A lot of Nazis have died right before trials in recent years. I sometimes say jokingly that I’m the only Jew in the world that prays for the good health of Nazi war criminals.”

In recent years, the precedent set by the Demjanjuk case has reached even further. In July, Oskar Groening, a 94-year-old former Nazi known as the “bookkeeper of Auschwitz” because he was in charge of handling money taken from prisoners, was convicted in a Northern German court. That verdict, according to Zuroff, was important because, as a bookkeeper, he was even more removed from the killing than a guard like Demjanjuk would have been.

Demjanjuk and Groening’s cases “opened the door for more cases,” said Jens Rommel, the chief public prosecutor at The Central Office of the Judicial Authorities for the Investigation of National-Socialist Crimes. Based in Ludwigsburg, Germany, it is the national body in charge of prosecuting these cases. “You don’t have to prove a determined act that directly leads to a killing,” he said. “The mere presence, the mere support of the whole system of a [death] camp is punishable.”

As a result, there are already four separate trials set to take place in 2016 in Germany. The first one, on Feb. 11 in Detmold, involves a former SS sergeant called “Reinhold H,” whose last name has been withheld by authorities. Rommel estimates that there are a “half-dozen” other cases in the investigation phase, though it is hard to offer an exact number because regional authorities are responsible for their own prosecutions. In addition, at the central office in Ludwigsburg, Rommel said there are seven more cases in “pre-investigation phase,” which means prosecutors are studying whether investigations can be formally opened.

Even though the new standard has made it easier to prosecute, challenges remain. Old lists of concentration-camp guards aren’t enough to bring charges, Rommel said—because prosecutors have to prove that the person whose name is on the list is the same person living today, prove he was there for more than a day, and prove he understood what was going on there. Prosecutors also have to determine that the defendants are fit to stand trial, which can be difficult with such elderly defendants. (In the case of Reinold H, for example, the trial has been pre-limited to two hours per day because that’s all he can handle.) Strict German privacy laws also make it hard for advocates or historians to launch private investigations. In an ironic twist, those laws were put in place after the Holocaust because of the way private information was used by Nazis to identify Jews.

It’s hard to say when the race to find and prosecute Nazi war criminals will stop, but it will likely be soon. Rommel has been told by the Minister of Justice in the state of Baden-Württemberg, where the Ludwigsburg Central Office is located, that the work will continue for a decade. “That was last year’s opinion,” Rommel says. “So we have nine years left, and I think that will be the end. This is because you have to count from 1945, when these men were about 20 years old. And in 10 years they will be close to a 100 years old already.”

But those who want to keep the work going have reason to do so. For Holocaust survivors and the children of survivors, some of whom will be traveling to Germany from all over the world to attend the trials, seeing members of the Nazi SS brought to justice in court is very important as a way to find closure, said Christoph Heubner, executive vice president of the International Auschwitz Committee. “It is one of the really dark chapters of postwar German history that this happened so late,” he said. “It’s really kind of late justice.”

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