The recent debate in Germany about the prosecution of former Nazi concentration camp guards – all about 90 years old – and the detention of one on 6 May near Stuttgart reminds us of the controversy about the trial against John Demjanjuk in the district court (Landgericht) of Munich in 2011. The controversy is by no means limited to Germany but takes place in all countries (for example Cambodia) where old men and sometimes women are held accountable for long passed crimes (for example the crimes of the Khmer Rouge). What these trials have in common is the old age of the accused, who may not survive to the end of their trials. Indeed, Demjanjuk died before the appeal against his conviction was decided. More recently, former Khmer Rouge senior official Ien Sary died on 14 March 2013, during his trial by the Extraordinary Chambers in the Courts of Cambodia . Typical of these trials are also the enormous difficulties in finding appropriate evidence such a long time after the facts. Moreover, given that camp guards normally just follow orders of mid- or top-level responsible they are only small cogs in the machinery of destruction set up by the criminal system and their individual criminal responsibility is difficult to establish. We will return to this problem at the end of this essay.
On a more fundamental level, one is always confronted with the question of the justification or rationale of such trials in terms of the purposes of punishment. Offender-related rationales, especially re-socialization or rehabilitation, are hardly plausible in the context of system criminality, especially when the perpetrators are facing death anyway. The likelihood of convicted system criminals re-offending in a new system is next to zero. System criminals do not need to be re-socialized through punishment since they have not been deviant in the societies in which they lived in . Indeed, they carried out the atrocities demanded by the former criminal system, for example keep running a concentration camp. If this (their) system is replaced by a new one they usually quickly adapt to this one too and turn into the normal citizens they have always been, except for the period of the criminal system. These citizens are good neighbours who do not come into conflict with the law. Their conflict concerns their conduct in the former criminal system. Thus, they are investigated for past instead of present conduct. In sum, former system criminals neither have to be reintegrated into the new society nor is it necessary that this society must be protected against them, especially if they are harmless old men today.
What about retribution (just deserts) then? Does it justify prosecuting these people? Retribution is directed at both the individual and the crime. The individual must be punished because he broke a legal norm (‘Punitur, quia peccatum est’). In this sense, one does not attribute to the punishment any secondary effect and, with that, any purpose directed towards the future and the prevention of similar offences (‘Punitur, ne peccetur’). According to Kant the criminal offender must be punished “because he has broken” [the rule of prohibition] (‘weil er verbrochen hat’). Following this line of argument criminals would even have to be punished in a society living on an island that decides to dissolve itself. Thus, penal sanctions have a moral, autonomous, and obligatory character. Retribution, in its more modern turn, sees punishment as a fair balance for the wrong represented by the offence. The wrong is both constitutive and limitative with regard to the punishment. The common sense plausibility of this approach is the reason of its popularity especially among lay people. It justifies, however, the punishment not only of most serious system crimes, but of every crime. Utilitarian considerations inquiring about the usefulness of the punishment for the society as a whole are not taken into account. Thus, any kind of discretion by the prosecution authorities, normally based on and guided by utilitarian and pragmatic considerations, is as alien to retribution in its traditional sense as statute of limitations. Yet, the social impact of punishment is a legitimate concern in a secular and pluralist society. After all, criminal law does not exist for its own sake but to avoid and solve interpersonal conflicts and, perhaps, even establish social peace. Apart from that retribution has, with regard to international crimes, natural limits since a full balance of the suffered wrong is plainly unthinkable.
Thus, the idea of retribution must be complemented. A criminal sanction, useless for the society, cannot be justified and much less in a postmodern society, where criminal law is only one instrument among others to solve interpersonal conflicts. Preventive rationales, focusing on the general social impact of punishment, take these flaws into account. Thus, the central question is: what is the overall social impact of the punishment of former members of a criminal system? A negative preventive effect in the sense of deterrence of a criminal sanction is difficult to prove and even more so in a macrocriminal context where the context of commission and the type of offenders à la Hitler, Milosevic or Pinochet are unique. As a matter of fact, we cannot know of any deterrent effect of the threat of punishment on members of a criminal system; we can only hope for it.
Also, one should distinguish between the different levels of hierarchy and responsibility within such a criminal system. Following Swiss scholar Hans Vest one can identify, a grosso modo, three levels: the leadership or top level where the decisions with regard to the criminal events as a whole are taken; secondly, the mid-level where the decisions of the top level are implemented by way of planning and organizing the micro-criminal enterprises, thereby exercising some form of control over a part of the organisation; the third and lowest level consisting of the executors who are, as persons committing the crime with their own hands, direct perpetrators. While the better informed perpetrators of the leadership or mid-level may, potentially, be guided or at least influenced by the threat of punishment, low-level perpetrators, for example concentration camp guards, may rather be influenced by their peer group than by the threat of criminal prosecution.
In any case, the criminal prosecution of former system criminals, especially if it takes place long after the change of the criminal system, can only be justified by general prevention in a positive sense, i.e., with a view to the strengthening of the validity of norms. Punishment reconfirms and thus restores the norms which have been broken by the criminal act. Thus, with punishment the law reaffirms itself against its negation, the punishment re-establishes the law (Hegel), it is the negation (punishment) of the negation (criminal act). In this perspective punishment is supposed to strengthen the society’s trust in legal norms and therefore to ensure that the people act according to the law, i.e., it is an ‘exercise in recognition of norms’ (‘Einübung in Normanerkennung’, Jakobs). That goes far beyond a mere symbolic effect but is a by all means real and communicative function of punishment, therefore called by some Anglo-American writers ‘expressivism’. For without the society’s trust in legal norms and of course in the institutions which apply these norms, no state can permanently claim any legitimacy vis-à-vis its society. The positive general prevention shares with retribution the idea to even out justice. The criminal prosecution of former system criminals can therefore be justified in a dualist way, on the one hand by retribution in the sense of a balancing exercise and, on the other, by positive general prevention in the sense of a confirmation and strengthening of the broken norms.
With regard to former concentration camp guards – being mere executors, lacking a clearly identifiable individual contribution – it can be difficult to determine the violated legal norm which punishment is supposed to restore. That question takes us to the issue of individual criminal responsibility of such low-level participants.
In thinking about this issue with regard to camp guards, the question arises whether Demjanjuk’s conviction as an accessory to murder in 16 cases merely on the ground that he worked as a guard in the concentration camp Sobibor (and therefore without proof of any identifiable, individual contribution) can serve as a precedent for the current investigations of other camp guards? The Munich district court’s answer would certainly be in the affirmative. It convicted 91-year old John Demjanjuk of accessory to murder on 12 May 2011 because he supervised as a camp guard 16 transports of in total about 28,000 Jews. The court renounced any proof of a more concrete individual contribution of Demjanjuk, thereby departing from the precedent in the Frankfurt Auschwitz case in the 1960s where twenty concentration camp guards of the central camp at Auschwitz were charged with murder. While 17 accused were convicted and sentenced to prison sentences between three years and life imprisonment, three accused were acquitted of all charges, because the prosecution could not show an individual contribution of them with regard to the killings. By contrast, for the Munich court it was sufficient to establish that the only purpose of Sobibor was to mass murder Jews, converting Sobibor to a ‘pure’ camp of extermination (‘reines Vernichtungslager’), with the result that any form of participation or involvement in the activities of the camp had to be seen as a facilitation of that purpose of extermination. This position, albeit not in line with the ‘Auschwitz case law’, could be based on another precedent, also developed during the 1960s, establishing that in case of ‘pure’ extermination camps à la Sobibor the commission of mass murder is the principal crime and any participation in the purpose of extermination is to be considered as a punishable contribution to this purpose being implemented by mass murder.
This reminds us of the second form of ‘joint criminal enterprise’ (JCE), developed by the ICTY since the Tadic case with a view to the so-called ‘concentration camp cases’, where crimes are committed by members of military or administrative units, such as those running concentration or detention camps, on the basis of a common plan or common purpose. The crucial elements of that kind of criminal responsibility are both the criminal nature of the enterprise and the quality of the conduct of the participant. In case of a ‘pure’ criminal enterprise (i.e. a ‘pure’ extermination camp) every conduct that facilitates the purpose of that enterprise must be qualified as assistance to the criminal purpose. This does not only apply to acts immediately directed at the killing of persons such as the selection carried out on the ramp, where concentration camp guards determined who was unfit for forced labour and sent those persons immediately to the gas chambers (so-called “Rampendienst”). It also applies to mere administrative tasks such as bookkeeping, since without these tasks the concentration camp could not fulfil its purpose. In other words: these acts also increase the risk that the principal crime, i.e. murder, is committed and thus exclusively serve the purpose of realising the criminal enterprise. The said risk must be realised through the commission of the (main) crime (murder) or, in other words, the risk-creation or increase must be causal for the commission of this crime.
This risk-based approach also enables us to determine the criminal liability for so-called ‘neutral’ contributions, for example delivering food, petrol, or other ordinary marketable commodities, to a concentration camp. In case of external or indirect contributions, taking place from outside the camp, which do not directly relate to the destructive purpose of the camp (as, for example, the delivery of Potassium cyanide does), the criminal responsibility depends on the knowledge of the supplier: if he is aware of the criminal purpose of the concentration camp and therefore of the criminal impact of his contribution he incurs criminal responsibility. This leaves us with cases where an external person contributes to a ‘mixed’ enterprise, for example a detention camp where the death of the detainees is only a ‘side-effect’ of the inhumane conditions of the camp but the main purpose is, for example, forced labour. Criminal responsibility in these cases is predicated on the proof of identifiable individual contributions to concrete crimes.
A German version of this essay was originally published in Frankfurter Allgemeine Zeitung, 3 May 2013, p. 7. I thank my research assistant Alexander Heinze for preparing this English version.
 It is worthwhile to quote the relevant part of the judgment for the German-reading audience: ‘Die drei Vernichtungslager Treblinka, Belzec und Sobibor dienten nur dem einzigen Zweck der massenhaften Ermordung der jüdischen Bevölkerung Europas. Damit war jede Tätigkeit aller übrigen Wachleute im Lager eine Förderung des Hauptzwecks des Vernichtungslagers …‘.