'Final Verdict': Charting post-WWII German criminal law - review

In the years he spent painstakingly writing Final Verdict: The Holocaust on Trial in the 21st Century (“a slow and arduous process” as he terms it), Tobias Buck came to understand the stages Germany went through in coming to terms with its Nazi past. 

It was a struggle, he asserts, connected with the nation’s slowly evolving judicial procedures, but it has resulted in “unflinching recognition of the terrible deeds done by Germans in Germany’s name – and an unwavering commitment to keeping alive the memory of the Holocaust.”  

One striking symbol of this, says Buck, is the memorial to its victims that a reunified Germany built in the heart of Berlin, just south of the Brandenburg Gate. He describes it as being on a “gargantuan scale,” extending across a site the size of three football pitches [fields], which reflects the central space that the Holocaust occupies in the nation’s collective conscience. 

It was not always so. In Final Verdict, Buck analyzes just how this national awareness developed. Because it was influenced by Germany’s legal and judicial procedures as they matured over time, he chose to do so by tying his analysis to what could well be the last war crime trial arising from World War II.

On October 17, 2019, Bruno Dey, aged 93, was wheeled into a Hamburg courtroom, hiding his face behind a red folder. He was accused of being involved in the murder of 5,230 people at the Stutthof concentration camp. In the process of taking us scrupulously through the nine-month trial that followed – partly based, he tells us, on personally transcribing the audio recordings of the proceedings – Buck charts the progress of German criminal law from the immediate post-war period. 

Following the Nuremberg trials, which ran from November 1945 until October 1946, the tendency of German courts was to place most, if not all, the guilt for Nazi war crimes on Hitler and the senior Nazi leaders, and to treat the chain of command beneath them as mere executives. This approach reflected a general feeling within the German population that while the nation as a whole had perhaps been gullible victims of the Nazi machine, groups such as the regular army, civil servants, judges, and lawyers were not initiators of criminal activity and had only been doing their duty. 

Incidentally, Buck points out, the myth of the “clean Wehrmacht” persisted until an eye-opening exhibition in the mid-1990s revealed the complicity of the armed forces in implementing the Holocaust.

German criminal law and the German judiciary were generally well geared to deal with exceptionally brutal Nazi thugs and returned appropriate verdicts. Their failure to deal appropriately with others at that time was, Buck says, because of the elaborate criteria built into German law for defining murder and manslaughter.

A Federal Court ruling clarified the point. If a person accused of murder did not personally want that crime to be committed, had no personal interest in it, and did not have a personal desire to commit the crime, he or she could not be convicted of murder, no matter what steps he or she might have taken to bring about the victim’s death. That person was an accessory, a tool, or an assistant used in someone else’s crime.  

Moreover, both murder and manslaughter were, at first, subject to a statute of limitations. For murder, this was eventually abolished, but it stayed in place for cases of manslaughter. Buck comments that, with few exceptions, after 1960 when the statute of limitations came into effect, it became simply impossible to bring to court any manslaughter case from the Nazi period.

He points out that of the 15 top Nazi officials who attended the notorious Wannsee Conference in January 1942, that authorized the ”Final Solution,” five died before the end of the war, two were tried and executed, and the Israelis finally caught up with Adolph Eichmann, who stood trial in Jerusalem and was executed. “The remaining seven, however,” he writes, “were either never charged or escaped with minor punishment.” 

Modern Germany and the Holocaust

THE MOOD among the German population was to draw a line under the past and get on with building a democratic future under the Federal Republic, created in 1949.  

Amnesty laws were passed by the new parliament, and when, in 1955, Germany was given full responsibility for prosecuting Nazi war criminals, it was barred from prosecuting any suspect previously put on trial by Allied courts. Thus, any suspected Nazi criminal who had been acquitted due to lack of evidence was immune from further prosecution.

These and a range of other factors militated against an effective series of prosecutions that might have brought a host of major Nazi war criminals to justice. 

“It would take a peculiar kind of jurist,” writes Buck, “stubborn, awkward, even a little insubordinate,” to put in train a campaign against surviving perpetrators of the Holocaust. 

But such a jurist did exist. Buck identifies him as retired judge Thomas Walther, who helped prosecute the notorious John Demjanjuk, a former guard at the Sobibor extermination camp.

Buck describes how, coming out of retirement in 2006, Walther succeeded in overturning the ingrained tendency of German courts to prosecute only suspects who could be proved to have killed a named victim with their own hands, on a certain date, in a certain place. This criterion was meaningless when considering the industrialized murder in death camps such as Auschwitz and Treblinka. Walther, working with colleagues in the Central Office for the Investigation of National Socialist Crimes (the Zentrale Stelle), succeeded in obtaining Demjanjuk’s conviction. Buck explains that Walther helped establish in German law that “it did not matter that Demjanjuk could not be tied to a specific killing. What mattered was that he was there, at Sobibor, helping to keep the factory of death in motion.”

AND THIS was the principle applied by Judge Anne Meier-Goring in the case of Bruno Dey. Like Demjanjuk, Dey was a camp guard at a Nazi concentration camp – in this case, Stutthof; but unlike Demjanjuk, Dey was 17 years old and had no connection with the prisoners or the operation of the camp. He stood guard in the watchtower and never fired a shot from his rifle. He was, as Buck puts it, “the smallest of small cogs” in a machine whose murderous intent he at first claimed to know nothing about.

What the presiding judge, Meier-Goring, eventually established was that Dey certainly was aware of what was happening to the thousands of prisoners who entered the gas chambers never to emerge, and that he never took any steps to remove himself from Stutthof, despite the fact that many SS personnel serving in concentration camps were known to have asked for a transfer – and that there was not one documented case of SS personnel being executed for doing so. 

There were a number of twists and turns of events before the trial was brought to an end, but in the event, the principle that had been established in the Demjanjuk trial was applied to Dey, and he was found guilty of being an accessory to murder in 5,232 cases. Dey was sentenced to a suspended juvenile prison term of two years. As a 93-year-old man, he was most unlikely to re-offend, and so would not see the inside of a prison cell. 

Final Verdict is a gripping read from first to last. Using the Dey trial as its central core, Buck provides a wide-ranging survey of how German jurisprudence came to terms with the magnitude of the crimes committed by the Nazi regime in the name of the German people, but also with the degree of guilt involved in simply “obeying orders.”

Buck’s deep research into his subject makes his book highly informative and thought-provoking. His one blind spot concerns the date of the notorious Wannsee Conference at which 15 Nazi leaders decided on the “Final Solution” – namely to wipe out the Jewish people. Buck gives two different dates for the conference, both of them wrong. It actually took place on January 20, 1942.

Along the way, Buck reveals something of his personal story. He is half-German and discovers that his grandfather, Rupert, was “an early Nazi” who joined the party in 1933, was in the SS from 1933–1935, and wore the uniform, including a swastika on an armband, at his wedding. 

Discussing his German grandparents’ attitude toward the war, Buck’s English-born mother recalls not their denial exactly, but their sense of victimhood. Buck expands on this early popular reaction, and how it matured with time. 

Final Verdict is an important contribution to understanding the impact of the Holocaust on the nation from which it emanated. Buck explains how Germany has come to terms with its guilt and responsibility, and how the Holocaust has assumed a centrality in the national consciousness.

This is a book that deserves to be read.                          

The writer is the Middle East correspondent for Eurasia Review. His latest book is Trump and the Holy Land: 2016-2020. Follow him at a-mid-east-journal.blogspot.com

• FINAL VERDICT: THE HOLOCAUST ON TRIAL IN THE 21ST CENTURY 
• By Tobias Buck
• Hachette Books
• 336 pages; $30