Nazi War Crimes: Protecting the Perpetrators?

So-called "human rights activists" have placed their calls for the creation of an international criminal jurisdiction like the International Criminal Court (ICC) under the banner of bringing an "end to impunity" - namely for the perpetrators of war crimes and crimes against humanity. The supposed urgency of their appeals is frequently underscored by alleged analogies between current or fairly recent events and the crimes, more specifically, of Nazi Germany. These same activists are, however, curiously silent when it comes to the actual perpetrators of Nazi war crimes, many of whom are living out their days in a comfortable retirement in, among other places, Germany.

Last Wednesday, an Italian court in La Spezia, Tuscany found ten former members of the Waffen SS division “Reichsführer” guilty of mass murder for their roles in the massacre of some 560 residents of the village of Sant'Anna di Stazzema on 12 August 1944. 300 Waffen SS are supposed to have entered the village that day searching for Italian partisans. Some 80% of their victims, according to a report in the Neue Züricher Zeitung, consisted of women, children, and elderly, many of them killed by handgrenades tossed by the SS men into the buldings where the villagers were attempting to hide. The Austrian paper die Presse describes the following scene:

More than 130 people kneeling and praying with the pastor in the square in front of the church are shot. The Germans drag the wooden benches from the church, pile them on top of the corpses, pour gas on them and set them on fire.

The English-language press – many of whose most prominent representatives have been so quick to accuse others (notably, Serbs in the 1990s) of “Nazi-like” crimes – have virtually ignored the Italian court decision. (For an exception, see the Times of London here.)

The court sentenced the ten men to life-long imprisonment. But none of them will serve their sentences, since Germany refuses to extradite Nazi war criminals. This attitude is particularly notable when one considers that Germany recently passed a so-called International Criminal Code into German law that gives German courts the right to try suspects for war crimes and crimes against humanity no matter their nationality and no matter where their alleged crimes are supposed to have been committed. Even before the “International Criminal Code” was passed into law, German courts in fact already pursued several such cases – notably, against Bosnian Serbs – in the name of the so-called Principle of Universal Jurisdiction. And, as I have discussed at length here, German officials - in presenting Germany as the vanguard in the struggle against impunity for war criminals - militated for similar provisions to be included in the Rome Statute that created the International Criminal Court. The Italian court, by contrast and in conformity with the old-fashioned principle of territorial jurisdiction - the indispensable basis for any coherent system of international law in the customary sense of the term - was merely claiming to try the ten German men for crimes they committed precisely on Italian territory.

German Nazi war criminals seemingly have less to fear from the German courts than do alleged Serb war criminals. Since the announcement of the La Spezia judgment and presumably in response to the public pressure created by the latter, the Stuttgart district attorney’s office has announced that it too is now investigating nine of the ten SS men convicted by the Italian court - and has even thrown in five additional suspects for good measure. But as Gabriele Heineke, a German lawyer representing the Association of the Victims of Sant’Anna, has noted in an interview with the website German-Foreign-Policy.Com:

There is a real need to find out how it was possible that the perpetrators could live in Germany for 60 years without being bothered in the least. They did not even have to hide. Their names, I have to assume, can be found in any phonebook.

I noted above that advocates of the International Criminal Court and other supposed institutions of "International Criminal Justice" have sought to underscore the urgency of their cause by way of alleged analogies between current or recent events and Nazi war crimes and/or crimes against humanity. On closer inspection - as I have shown in detail here for the specific case of the Kosovo crisis - these supposed analogies frequently turn out to be wildly overdrawn and implausible. One crucial difference that needs to be kept in mind is that most recent cases of alleged widespread war crimes or crimes against humanity occurred, as in the former Yugoslavia, in the context of civil conflicts. Nazi war crimes and crimes against humanity occurred in the context of Nazi Germany's acts of aggression against and subsequent occupation of other states. This is very clearly laid out in the Nuremberg indictments, where the unleashing of wars of aggression is the principal charge against Nazi officials, under which all the other charges are subsumed. It is interesting to note that the states that are party to the ICC statute have not even been able to agree upon a legal definition of the international crime of aggression - and they do not appear to be in any particular hurry to do so.

The notable complacency with respect to actual Nazi war criminals displayed by "human rights activists" and international "opinion-makers" leads one to wonder whether the point of the increasingly shrill campaign in favor of "international criminal justice" is in fact to prevent the repetition of Nazi war crimes - as according to the publicity - and not rather to relativize them and/or exploit their memory for contemporary political ends.