SHALOM

Most people naturally assume that the more time that elapses since World War II, the less Nazi war criminals will be brought to justice, but the record of the past three years clearly shows that that is not necessarily true everywhere. While many countries have basically given up on such efforts and others have had little success, there are certain exceptions to this general assumption. Thus, for example, during the period from January 1,2001 until January 1, 2004, the United States’ Office of Special Investigations, the special agency established by the US Justice Department to prosecute Nazi war criminals living in America, obtained sixteen convictions and filed eighteen new cases. In the year 2002 alone, it filed eleven new cases, the highest total it ever achieved since its establishment in 1979.

This outstanding result can be partially attributed, however, to the fact that in the United States, Nazi war criminals are not tried on criminal charges (for murder, genocide or crimes against humanity), but rather for immigration and naturalization violations. (They lied on their immigration and/or naturalization applications.) This legal method was adopted by the American authorities in the late 1970’s, upon discovering that large numbers of suspected Nazi collaborators and war criminals had emigrated to the United States posing as refugees during the aftermath of World War II (1947-1952). Since they had committed their crimes outside the United States at a time when they were neither US citizens or residents, and their victims were not American citizens, it was doubtful whether they could be tried for the crimes they had committed in Europe, and thus the US opted for its current policy of denaturalization and deportation, which is relatively easier to achieve this criminal prosecution. In fact, the Americans are able to win certain cases relying exclusively on documentation, which given the advanced age of potential witnesses (and problems of memory), assures them of far more impressive results than countries which prosecute Nazis on criminal charges.

This being the case, there was one country which during the past three years succeeded in convicting three Nazi war criminals of murder, which was the highest total of criminal convictions of Nazi war criminals anywhere in the world. The country in question is Germany, which in recent years has continued to pursue these cases and to achieve a certain measure of success. A closer look at the three convictions of Nazi war criminals obtained by German prosecutors during the period from January 1, 2001 until January 1, 2004 will afford us insight into the problems faced in such cases and the factors which ultimately determined the fate of these criminals.

The first case decided during this period was of Julius Viel who was convicted in early 2001 of murder in Ravensburg. The Viel case is of particular interest due to its unique circumstances and the fact that it highlights the significance of testimony by fellow perpetrators. In 1945, Julius Viel served as an SS officer in the Theresienstadt ghetto/concentration camp not far from Prague. One day in March 1945 he took a detail of inmates from the camp to build an anti-tank ditch to try and slow down the advancing Soviet armies. As the day’s work was coming to an end, Viel, for no apparent reason, shot dead seven of the inmates with his rifle. Viel was never investigated for this crime and it is quite likely that he never would have been held accountable if not for a sequence of events which took place in Canada, far from the scene of his crime.

In 1996, an American Jewish private investigator named Steve Rambam attempted to track down and solicit confessions from suspected Nazi war criminals in Canada. Posing as a researcher from the nonexistent Belize-based “St. John’s University of the Americas,” who was working on a project to examine the relations between the military, police, and civilian authorities under Nazi occupation during World War II, Rambam went knocking on the doors of suspected Nazi war criminals in Canada, some of whose addresses he had received from the Simon Wiesenthal Center. Although he arrived at all these homes without any prior notification, several of the suspects admitted him and at least one even spoke openly about his wartime experiences clearly implicating himself. Rambam clandestinely taped that conversation and later publicized it at a press conference in Montreal. In it, Antanas Kenstavicius, the former Lithuanian police chief of the Svencionys district, related in a totally matter-of-fact manner how thousands of the Jews in his area had been rounded up and murdered in the fall of 1941.

The Kenstavicius tape helped focus public attention on Canada’s continued failure to prosecute Nazi war criminals, and as a result, a local professor of economics named Adalbert Lallier came forward to submit testimony regarding a crime that he had witnessed more than fifty years previously. It turns out that Lallier, who has drafted as a Romanian Volksdeutsche into the SS as a seventeen year old, had seen Viel murder the inmates of Theresienstadt in March 1945 and was willing to testify against him.

Ultimately it was Lallier’s testimony, which proved to be critical in the trial of Viel, who was convicted on April 3, 2001 and sentenced to 12 years in prison. (Viel remained incarcerated until several days before his death in February 2002 ). In fact, without Lallier’s testimony, Viel not only would never have been convicted, no one would ever have even known that such a crime had ever been committed. This case clearly underscores the extremely vital role and enormous potential of perpetrator testimony in Nazis war crimes trials since it is often difficult to find other witnesses (erstwhile victims or bystanders) who can provide as accurate testimony as those who served together with the criminals and were often right by their side as they committed their crimes.

The second conviction obtained by German prosecutors was of Anton Malloth, an Austrian, who also served at Thereseinstadt. Unlike Viel, whose crimes were unknown, Malloth achieved a degree of notoriety as one of the executioners at the “Kleine Festung” (Small Fortress) of the concentration camp, and in fact was sentenced to death in 1948 in Leitmeritz, Czechoslovakia. The sentence was not implemented at that time, however, since Malloth escaped from jail and returned to his native South Tyrol, which after World War II belonged to Italy.

For reasons that are unclear, Italy only expelled him in 1988 but no steps were taken at that point to bring him to trial, neither by Czechoslovakia (and later by the Czech Republic on whose territory he committed his crimes), or by his native Austria, or by Germany to which he moved following his expulsion. In fact, Malloth had help from former Nazis particularly from the “Stille Hilfe” (Quiet Help) organization headed by Heinrich Himmler’s daughter Gudrun Borowitz, which was established in Germany to provide legal, financial and moral assistance to Nazis facing prosecution or already serving jail sentences. With their help, Malloth managed to obtain a place in a well-off old-age home in Munich and most important, to avoid prosecution despite the fact that his crimes were well-known, primarily thanks to the efforts of journalist Peter Finkelgruen whose Jewish grandfather had been murdered by Malloth.

Yet this situation changed when a determined young prosecutor named Konstantin Kuchenbauer took over the case, completed the investigation and issued an indictment. At this point, Malloth’s health was in decline and needless to say his lawyers tried to exploit the situation to prevent his prosecution. But Kuchenbauer pressed on and ultimately Malloth was brought to trial in the prison in Munich in which he had been incarcerated. Despite the fact that the trial was limited to only a few hours a day due to Malloth’s health, it was successfully completed and he was sentenced to life imprisonment on May 30, 2001.

The third conviction obtained was of Dr. Friedrich Engel, who served as SD chief in Genoa, Italy and was convicted in Hamburg for the shooting of 59 persons in a reprisal action following an attack by Italian partisans against German troops. In fact, Engel was apparently involved in the murder of many other Italian civilians during his tenure in Genoa, but was ultimately only charged with responsibility for one such action. Throughout the many years that his investigation dragged on, he claimed that he was only following orders and that Hitler had personally directed to shoot civilians after every attack on Nazi troops. As could be expected, such a defense was rejected by the judges who sentenced Engel to seven years imprisonment on July 5, 2002. Due to his advanced age (he was ninety-three years old when he was sentenced), he was not sent to jail.

If we add the ongoing trial of Dutch SS man Hebertus Bikker and the recent arrest in January 2004 of Slovak Nazi collaborator Ladislav Niznansky (both German citizens currently living in Germany) for murder, we see that the German authorities are still actively pursuing Nazi war criminals, although there is no doubt in my mind that they could be doing more to increase the number of cases, speed up the investigations, and achieve more convictions. At the same time, it should be said that the cases being tried these days in Germany are concrete evidence of the existence of at least some political will in Berlin to proceed with such prosecutions. I have the district impression that such cases would not have been tried by Germany in the fifties, sixties or even seventies, when the prosecution of Nazis was considered far more problematic and the judicial system was much more sympathetic to the defendants than is the case today.

In that respect, Germany in recent years has made important progress and achieved a larger measure of justice than many other countries. And while it is certainly true that Germany has the most potential suspects, at the same time it has exhibited newfound political will to prosecute which ensures that the Nazi war criminals living in Germany cannot be certain that they will never be held accountable for their crimes, which is a small but noteworthy achievement for justice and a symbolic but limited moral victory for the victims and their families.