West Germany: When Does Justice End?

For the first time in 20 years, the German language echoed once again through the cells, bunkers and crematoria of the infamous death camp at Auschwitz. It was spoken there by 16 lawyers and a judge from a Frankfurt war-crimes trial, who had made a special trip to Poland to check the credibility of testimony given at the trial of 21 accused Nazi murderers. Since war’s end, Poland has kept a portion of the camp intact as a memorial to the estimated 3,000,000 slain prisoners, and as the German voices rang out, a Pole who had himself been imprisoned at Auschwitz shuddered. Later he said: “I closed my eyes and it was as if it were yesterday.”

Shallow Ditch. The tour was also grisly for the Germans, as they measured distances and angles of vision to determine whether defendants could have been heard and identified as claimed by their accusers. One grey-faced lawyer fled an inspection of the dungeons of Cell Block 11, crying “I can’t stand it any longer!” Another lawyer became ill after visiting one of the gas chambers. All stood mutely at the edge of a shallow ditch where the Nazi SS troops had burned corpses on pyres when the crematoria were filled. Traces of ash and bone could still be seen. One German picked up a yellowed, half-burned page printed in Hebrew. It was the Kaddish—the prayer for the dead. One of the accused, former SS Dr. Franz Lucas, who is charged with making life-or-death selections of incoming prisoners, voluntarily accompanied the court officials. Said Lucas: “It was my duty to come. Everyone who has the opportunity should come here and see what racism can lead to.”

Embarrassed West. Poland, which still harbors bitter suspicions of Germany, was impressed by the court’s willingness to make this conscientious journey into the past. A doubting world has long since been convinced of the determination of most West Germans to redress the evil of Nazidom. Nevertheless, a fear remains that many of Hitler’s villains may go scot-free.* Under the German penal code, the statute of limitation for murder runs out after 20 years. That means that no further prosecution of Nazi killers can be instituted after May 8, 1965, or 20 years after V-E day, the first date on which prosecutions were theoretically possible. What seems unusual to U.S. lawyers is that West Germany has a statute of limitations with regard to murder (it is based on a German penal code dating back to 1871).

Dr. Nahum Goldman, president of the World Jewish Congress, complains that there are still “warehouses full” of unexamined Nazi documents. Lawyer Robert Kempner, who was a U.S. prosecutor at the Nürnberg trials points out that the Nazi killers of 4,000 Roman Catholic priests have not yet been brought to trial. The Communists may well be withholding evidence about Nazi criminals in order to embarrass West Germany, once the statute of limitations expires.

In a joint resolution, West Germany’s ruling Christian Democrats and the opposition Socialists called on Justice Minister Ewald Bucher to report whether or not the statute should be extended by a constitutional amendment.

Pulled Switches. The problem has been hotly argued. Like the U.S. Constitution, West Germany’s constitution bans ex post facto laws—typically, laws passed to render an act punishable in a manner in which it was not punishable before. The Justice Ministry holds that extension of the statute of limitations would be just such a law. Some German jurists disagree: they say that extension is perfectly legal if it covers all defendants, not merely Nazis. But the goal would still be Nazis, and the Justice Ministry sees this as unconstitutional discrimination.

While still eager to catch such big fish as Martin Bormann, Hitler’s top deputy, and Heinrich Müller, a boss of the Gestapo, who are repeatedly rumored to be alive in hiding, Bonn claims that an extension of the statute would mainly net unimportant minnows at home, and overburden prosecutors who find it harder and harder to prove specific charges after 20 years. As one official puts it: “If you want to bring to court every railroad man who pulled the switches at Auschwitz, knowing that the trains were carrying Jews to their deaths, there will be no end to the number of people involved in Nazi crimes.”

* Since 1945, German courts have investigated 30,000 accused Nazis, prosecuted 12,882, imprisoned 5,243, sentenced 76 to life imprisonment and twelve to death (the death sentence was abolished in 1949). More than 700 prosecutions are now under way. During the occupation, Allied military courts prosecuted 5,025 Nazi criminals, condemned 486 to death. Russia imposed an estimated 10,000 sentences on German war criminals.