Judges Removed for Bias in Germany’s Final Holocaust Trial

A Holocaust trial in Germany of a Nazi medic who worked at Auschwitz has made history with the unprecedented dismissal of the judges for bias. The forced recusal of the judges sent shockwaves across German legal circles.

Prosecutors and attorneys for Holocaust survivors had accused lead judge Klaus Kabisch of deliberately stalling the trial of Hubert Zafke, who is charged with 3,681 counts of accessory to murder during his time in Auschwitz. A higher court accepted the motion to recuse the judge late last month, removing him along with his co-judges. Kabisch now faces charges of contempt of court and obstruction of justice.

The trial – widely seen as Germany’s final Holocaust trial – has been running since February 2016 in the eastern city of Neubrandenburg. It was halted four times as judges acquiesced to defense motions claiming that the 95-year old Auschwitz guard was too ill to continue the proceedings.

Judge Kabisch’s bias was evident from some of his earliest rulings in the case. He refused to allow Walter and William Plywaski, brothers from Colorado whose mother was murdered at Auschwitz in the period Zafke was working there, the right to appear as co-plaintiffs and to testify, the German newspaper Die Welt reported.

That decision was overruled by a higher court in Rostock, but Kabisch sabotaged the court’s ruling by denying attorney Thomas Walther travel expenses to Colorado so he could meet the elderly Plywaski survivors in person. For German courts to underwrite travel costs for plaintiff’s counsel is routine in Holocaust trials.

Once again, the Rostock court overturned the judge’s ruling, only for Kabisch to brazenly reassert his refusal to allow the brothers any role at the trial. Their attorney appealed again to the higher court, and Kabisch was once again overruled. Finally, in response to Walther’s outraged complaints of bias and obstruction of justice, the judges were removed from the case.

Death Camp Guards Were Not Prosecuted

Zafke is one of a series of former Auschwitz workers whom German prosecutors have pursued since a groundbreaking ruling in 2011, when the former Sobibor guard John Demjanjuk was convicted of accessory to murder.

In a cynical twist, denying the Holocaust is a crime in Germany, but there is no provision in the German criminal code for punishing the killers themselves. Until the Demjanjuk case, the mass slaughter of innocents in the Holocaust was treated no differently than any other murder in peacetime. The bar for proving guilt was too high to meet in the case of most death camp guards.

In other words, no one had ever been convicted in a German court of participating in the countless day-to-day routine functions that kept the death factories running. These included herding prisoners from the death trains to the gas chambers, stripping them of their belongings, transporting Zykon B poison gas and pouring the canisters into gas chamber tubes, preventing escapes, shooting and whipping inmates into submission, overseeing the burning and disposal of the bodies, and countless other evil functions.

Frankfurt War Crimes Trials of the Sixties

The Frankfurt trials of 1963-1965 put on trial only 22 Nazis SS men – the most egregious sadists – out of thousands who were comfortably integrated into post-war Germany society. Despite the abysmal failure of the Germany judiciary to prosecute war criminals, these landmark trials with their harrowing witness accounts tore aside the veil of silence about the Holocaust in Germany. They spurred a national consciousness about the horrific scale of the war crimes.

High schools and universities organized trips to attend the Frankfurt hearings that stretched over two years. Judicial authorities set up an exhibition on Nazi crimes at the time of the trial, graphically heightening public awareness of the depravity of Hitler’s National Socialism.

The confrontation with the past in Germany has undergone several stages. In the immediate postwar years, the Allies conducted the Nuremberg war crimes trials and oversaw the drafting of laws and the framing of a new Constitution designed to prevent the re-emergence of National Socialism.

With the onset of the Cold War and the election of Chancellor Konrad Adenauer in 1949, West Germany and the Allies played down events of the past, continuing this policy under successive German chancellors Erhard, Schmidt and especially Helmut Kohl (who died in late June).

The basic thrust of Kohl’s position was that the time had come for Germany to stop wallowing in guilt, turn the page of history, and move on – a position that resonated with a German public that had grown weary of hearing about the Holocaust. The recent Holocaust trials, however, have forced Germans to revisit the horrors their parents and grandparents perpetrated and remained silent about for most of their lives.

More than six years have passed since the landmark decision by a Munich court in May 2011 to convict Ivan Demjanjuk as an accessory to murder for his role as an SS guard at the Sobibor death camp in Poland.

That decision was a direct result of a dramatic change in German prosecution policy toward Nazi war criminals, which has paved the way for additional successful trials of Holocaust perpetrators.

Although there was no doubt that Demjanjuk had served in that death camp – there was a document that proved that – there were no documents that could prove, or witnesses alive who could testify, to crimes he had committed against specific victims.

Demjanjuk was stripped of his US citizenship and was subject to deportation. But because authorities were unable to find a single government willing to accept him, they faced an impasse in the case.

“It was at his point,” writes Rabbi Ephraim Zuroff of the Simon Wiesenthal Center, “that two German prosecutors, Thomas Walther and Kirsten Goetze, came up with an alternate strategy with the help of German law professor Cornelius Nestler” to enable Germany to seek his extradition and prosecute him on criminal charges.

Walther and Goetze were working at that time at the Zentrale Stelle (Central Office for the Clarification of Nazi Crimes), the German federal agency responsible for prosecuting Nazi war criminals. “They were thus in a position to positively influence the German judiciary to adopt their suggested approach,” Zuroff writes in the Jerusalem Post.

The attorneys reasoned that since the primary purpose of Auschwitz, Treblinka, Belzec, Chelmno, Sobibor and Majdanek was the perpetration of mass murder, any person who served in such a camp with industrialized slaughter facilitates could be charged, at minimum, for being an accessory to murder. That crime carries a penalty in Germany of five to 15 years in prison.

This legal argument pulled off a conviction in the Demjanjuk trial. German authorities then began searching for all individuals who had served at any of the six death camps. Several dozen former Auschwitz guards were identified, as were 17 suspects from Majdanek, noted Zuroff. “Authorities also went after members of the mobile killing squads that operated on the Eastern front (Einsatzgruppen) and murdered approximately a million and a half Jews.”

In the ensuing six years, two SS men who served in Auschwitz were convicted and sentenced to jail in German courts – Oskar Groening in 2015 and Reinhold Hanning in 2016. These convictions and prison sentences, for four and five years of incarceration respectively, underscored the new position of the German judiciary that anyone who was stationed at a Nazi death factory was part of the murder machinery. It was also an admission that Germany’s legal code had, for the past seven decades, shielded from justice untold numbers of SS henchmen.

To date, however, not one of those convicted has served a single day of his jail sentence. The law in Germany is that an individual appealing his conviction is not imprisoned until his appeal is decided. Both Demjanjuk (in 2012) and Reinhold Hanning (last year) died before their appeals were heard, and even Groening, whose appeal was rejected in November 2016, has yet to be incarcerated.

For Historical Truth and Education

This does not diminish the importance of the legal proceedings, many believe, as they serve a vital role in establishing historical truth, and educating a new generation about the horrors of the Holocaust.

At the trial of SS guard Reinhold Hanning, accused of complicity in 170,000 killings, witnesses from the United States, Canada and Israel came to testify about what they endured and witnessed at Auschwitz, although no one was expected to remember the former SS guard personally. [See testimony of Irene Weiss below.]

“It’s not about sending these old folk to prison,” an editorial in Sueddeutsche Zeitung stated, echoing other newspapers. “It’s about education as well as justice.”

For many young Germans, a German commentator added, this dark chapter of German history is “as much in the past as ancient Egypt.”

In the 2015 trial of Oskar Groening, 94, known as the “bookkeeper of Auschwitz,” the defendant himself recognized his “moral responsibility” even as he denied ever killing anyone. He acknowledged in court that he was among the guards who kept watch as thousands of Jews were led from cattle cars to the gas chambers. He admitted knowing about the gassing of the victims and how their bodies were burned in ovens.

He told how he once helped round up fleeing prisoners, saw them herded into a farmhouse, and then heard them scream as they were gassed to death inside. He described how he saw a crying baby hurled to death against a truck by a fellow member of the SS.

“It is beyond question that I am morally complicit,” he told the judge.

Groening’s testimony gave the most graphic testimony ever from a Nazi defendant, transforming Auschwitz for today’s Germans from an abstract concept back into the demonic hell it was.

Beneath the Surface, Bitterness and Latent Anti-Semitism

Germany today is Europe’s richest, most prosperous state. “Beneath the crust, the confidence and tranquility, the lava of memory smolders,” wrote Judith Miller in a New York Times article, Erasing the Past. “When [German] society is forced to confront the Nazi past through the Holocaust trials of war criminals, bitterness and latent anti-Semitism burst forth with what seems astonishing power and vehemence.”

Miller wrote this in 1986, when only an insignificant number of Jews resided in Germany. There are around 118,000 Jews living there today. “Jews no longer feel safe here,” one German Jewish leader, Daniel Killy, recently said.

He went on to explain how a combination of extreme right-wing forces, deteriorating security, and Germany welcoming refugees brought up in cultures “steeped in hatred” for Jews were fostering a sharp rise in anti-Semitism.

“Unfortunately, the end of the Holocaust didn’t mean the end of anti-Semitism,” conservative MP Barbara Woltmann told a German daily. “New forms of anti-Semitism have arisen… It does worry me that significant latent anti-Semitism – I’d put it at 20 percent – still exists within the populace.”

A recent article in Die Welt included an interview with a 22-year-old Jewish man who took part in a recent pro-Israel demonstration. The article quoted the man as saying that he was shocked at the animosity against the marchers, noting a large group of counter-protesters had shouted hate slogans like, “Hamas, Hamas! Jews into gas!”

“Words like this have nothing to do with Israel,” the interviewee said. “they are purely anti-Semitic.”