11/14/2010 07:16 pm ET Updated May 25, 2011

Prosecuting Nazis in the 21st Century

This week, in Nazi news...

On Saturday, another former concentration camp guard bit the dust. This time around, it was Michael Seifert, 86, who served at the Bolzano camp in northern Italy during WWII.

The next day, Sunday obituaries detailed the "Beast of Bolzano's" beastliest crimes. In 2000, Seifert was convicted by a military tribunal on nine counts of murder, for crimes he committed in Nazi-occupied Italy. One of his victims was a pregnant woman, who Seifert raped and tortured before killing. Another was a boy who Seifert left to slowly starve.

Yet for a man who managed to distinguish himself, even during the war, with his extreme brutality, Seifert's banal death--in an Italian hospital bed, following surgery for a gastric complication (we might call it "old age")--seems an unsatisfying end. Adding to that: Seifert served just two years of jail time for his vicious crimes. He spent more time appealing and fighting extradition charges than he did locked up.

We keep hunting Nazis. But when we find them, we don't know quite what to do with them.

Seifert's profile is far from unique: former concentration camp guard; in his 80s; discovered living "quietly" in some country far from home (Seifert worked for years, and eventually retired, in Canada); brought to trial more than half a century after his alleged crimes.

Just last week 88-year-old Peter Egner, an ethnic German moved to the U.S in the 1960s, admitted in court that he served in a Nazi security unit in occupied Yugoslavia. He faces extradition to Serbia, which has issued a warrant for his arrest.

These aging Nazis are tracked down in different ways. They're outed by crusading journalists, dug up by self-described professional "Nazi hunters," or discovered through government investigations.

Once they're found, though, we hit the same old roadblocks.

For starters, the Nazis aren't what they used to be.

The whole Nazi prosecution process began immediately after the war, in Nuremberg, where the Allies brought dozens to trial. In the following decades, others who managed to escape Nuremberg had their own days in court.

These were big trials. Of big Nazis. And they had big consequences.

In 1962, Adolf Eichmann, "the architect of the holocaust,"--best known for scheduling the trains that carried Jews across occupied Poland to their deaths in concentration camps--was tried and convicted in Israel, after being discovered hiding out in Argentina. (Argentina was a destination hot-spot for Nazis in hiding. By the time Eichmann was tracked down in 1960, he had a nice job working for Mercedes-Benz.) The trial was precedent-setting first for what it did not do: namely, accept Eichmann's plea that he was not culpable for his actions because he was simply a cog in the Nazi machine: a regular man "following orders" from above. That defense has rarely been accepted since. And that is significant.

Similarly, cases in the 80s and 90s changed the way we approach genocide trials. The 1987 conviction of Klaus Barbie, "the Butcher of Lyons," helped shape modern definitions of "crimes against humanity." The 1995 conviction of Maurice Papon, former secretary general for police in Bordeaux, (strangely, he doesn't seem to have a catchy "The X of Y" nickname) threw light on the situation of French WWII criminals.

Compared to these men, the Nazis we are prosecuting today are often small fish. That doesn't make them less guilty. But it can make guilt harder to prove.

Take the case of John Demjanjuk that has dominated the news of late. Demjanjuk, 90, served as a guard in Nazi-occupied Poland, at the Sobibor death camp. After living comfortably in Cleveland, Ohio for decades, Demjanjuk has been charged with 27,900 counts of accessory to murder.

Here's the problem: Before Demjanjuk was keeping order in Nazi death camps, he was a Red Army soldier: drafted to fight against Germany in the war. In 1942, he was captured and became a POW. At that point, lawyers allege, Demjanjuk volunteered to work as a Nazi guard. He later served at three German-run camps including Sobibor, which the U.S. Office for Special Investigations describes as "as close an approximation of hell as has ever been created on this planet."

One question--did he have a choice?--has come to dominate his ongoing trial.

To answer it, lawyers are having to debate not just the nuances of Demjanjuk's story, but also WWII history itself: large and complex questions about what choices people did and did not, could or could not, make under Nazi rule. The dividing line between guilt and innocence is much blurrier than it was when we were dealing with high-level perpetrators.

Even when we decide to try these people, there's a question of what to charge them with.

Take the case of Josias Kumpf. As a member of the SS Skull Division, Kumpf served as a concentration camp guard in Germany and Poland. He has admitted to standing guard over mass graves, where he "finished off" the wounded.

Kumpf, who worked as a sausage factory worker in Wisconsin after the war, was deported to Austria by the US after his dark past was unearthed.

He' s now living free as a bird.

The Austrian Justice Ministry says that "legal obstacles" prevent Kumpf from being tried. The statute of limitations on his crimes have simply expired.

Things might be playing out differently elsewhere.

In France, the statue of limitations on WWII "war crimes" have also expired. But in some cases, French courts have tried to prosecute on "crimes against humanity" instead. The two are not the same. A "crime against humanity" implies that a crime is carried out on behalf of an ideologically-motivated regime.

In Germany, lawyers will find it hard to use either "war crimes" or "crimes against humanity." Since these categories didn't exist during the war, they can't be applied retroactively. They can charge Nazis with the more simple charge of murder, which has no statute of limitations. But only if they prove that the crime was committed out of a motive of deep hatred.

Sixty years later, it's hard to prove that.

Paris courts have argued, at various times, that wartime France was not ideological--but rather the passive victim of Nazi occupation. In this case, "crimes against humanity" charges cannot be employed.

Elfriede Rinkel
, a German-born woman who served as a camp guard, has argued that she couldn't possibly have been motivated to act by anti-Semitic hatred. She did, after all, marry a Jew after the war. So could she be charged with murder in Germany?

Prosecutors in Europe have a tough job. The laws that they can use today--those without statute of limitations--usually require that we know something more profound about the psychology of the criminal, or his regime, at the time the crimes were carried out. These are murky waters indeed.

Location, Location, Location

Variation between national laws is always expected. But Holocaust crimes rarely occurred within a single border. Demjanjuk was a Ukranian who fought for the Soviets, was captured by Germans, and allegedly served in Poland. Anton Tittjung, born in Yugoslavia (present-day Croatia), allegedly trained in German-occupied Austria before moving to the U.S; he has been charged by Spain.

Where should these people be tried?

We have to look back to Eichmann again. His 1962 trial was a landmark in large part because it established the idea of "universal jurisdiction" over genocide. Consider this: the state of Israel, which brought Eichmann to trial, did not even exist at the time of Eichmann's crimes. Still, the court ruled that it was competent to try Eichmann because he had committed a genocide against the Jewish people, and thus had broken accepted international law.

Spain especially has jumped on this "universal jurisdiction" bandwagon. Last year, a Spanish court indicted three Nazi guards, none of whom are Spanish or worked in wartime Spain.

Not surprisingly, the uncovering of an old Nazi usually kicks off years of aggressive extradition proceedings. The process can bring 65-year-old historic resentments to the fore.
Should we do it?

The German newspaper Süddeutsche Zeitung said it well: "Back then--an impossibly long time ago--these men who are now pushing 90 were in charge of keeping 'peace and quiet' in the slaughterhouse of world history. Today they're fragile, doddering and deaf."
We can prosecute away. But it won't look pretty.

Each time an old Nazi dies behind bars, we mark the occasion with a tidy obituary. But the trials themselves--the decades of legal wrangling, medical examinations, appeals, and extradition trials--are ugly. And they're unlikely to give us much sense of cathartic relief.

But the point going forward is that national courts need to make decisions that they've failed to make over the last 65 years.

Whether or not former Nazi officials are brought to trial is often arbitrary, or politically-driven. In some cases, former concentration camp guards are "uncovered" years before action is taken against them. A lot of times, no action is ever taken at all. A 2009 article by Die Zeit, a German newspaper, suggested that there are hundreds of living Nazis who could be brought to trial now. The US-based Simon Wiesenthal Center says that hundreds of investigations into former Nazi officials have been launched over the last decade, with very few going to trial. The process shouldn't be ad hoc.

If national courts are going to go after these people, they need to clean up the process. That will require dealing with history in new ways. Because what national courts are missing is a basic, accepted narrative of WWII. The result is that each individual "Nazi trial" becomes an occasion to renegotiate and rewrite the past.

We need to decide how much decades-old justice can be served in the courtroom. Not just because of the Nazis; they'll all be dead soon. But because the way we deal with crimes of war depends on it.