West Germany Tried War Criminals the Right Way

It took almost fifteen years and a shocking Eichmann trial for West German criminal justice system to start getting serious about prosecuting Nazi war criminals involved in the “final solution to the Jewish question” – and Nazi war criminals in general.

But when it (finally) got to it, West German jurists wisely decided to do it the right way – sticking to all universally accepted fundamental principles of criminal justice. Thus, avoiding the catastrophic problem of just about all post-WW2 war crimes trials.

The latter were all about politics – mostly of a dirty variety (concealing serial mass murder, rape, plunder, etc.) – and so (obviously) did not follow the abovementioned principles, rules and procedures.

The end result was genuinely catastrophic: while most (but not all!) defendants in post-WW2 war crimes trials were guilty de-facto, de-jure they were not guilty due to violation of abovementioned principles. Not innocent – just not guilty.

All war crimes defendants convicted by West German criminal courts, were guilty both de-facto and de-jure. Which was a major, major victory for justice… unfortunately, it came at a hefty price.

The fist of “Holocaust by Gas” trials (ultimately, there was one or more trials for every killing center – Auschwitz, Majdanek, Chelmno, Sobibor, Belzec and Treblinka) commenced in 1963 – twenty years after Aktion Reinhard was over and almost twenty years after the last mass murders in Auschwitz.

Witnesses died (or their memory became too weak to testify convincingly); physical evidence was lost or impossible to recover… consequently, it became very, very difficult to prove anyone’s guilt beyond the reasonable doubt.

Even of being accessory to murder – let alone of murder (giving or executing orders to kill). Hence, many defendants known to be guilty of heinous, horrifying crimes, were acquitted and set free.

Unlike the USA, Britain, Poland, USSR, etc., West Germany declined to pass a specific law aimed at Nazi war criminals. And it was right – in a civilized criminal justice system the law can not be applied retroactively – and there was no such law anywhere during the Holocaust.

Hence, all defendants were tried under common criminal law – hence the less-than-satisfactory outcome (in terms of verdicts and sentences). But very satisfactory in terms of justice.