West Germany: A Case of Transitional Justice avant la lettre?

Summary

INTERNATIONAL LAW AND 20TH CENTURY GERMANY

THE “LONGUE DUREE” OF THE GERMAN “STRUGGLE TO COME TO TERMS”

One of the most extraordinary criminal trials in recent German judicial history ended in Munich in May 2011. There is much reason to believe that this will be the last trial of its kind in the Federal Republic. After fourteen months and more than 90 days of proceedings a court jury delivered a verdict against John (Ivan) Demjanjuk. In July 2009, the former Trawniki guard had been extradited to Germany from the United States, and shortly aft erwards the Central office for prosecuting Nazi crimes, located in the state of Baden-Württemberg, had cited him in the course of its investigations into the extermination camp at Sobibór. The Bavarian state attorney's office brought charges against him, not for genocide but for participation in 28,000 simple counts of “murder”. On the basis of a legal rationale that is surely unique in the history of German criminal justice for Nazi cases, the court sentenced the 91-year-old defendant to five years imprisonment as an accessory to murder, with the term suspended due to the man's advanced age.

Like in a magnifying glass, the Demjanjuk trial allows us to focus on issues that continue to connect the Second World War with the post-war era down to this day. Covered by the neologism of “transitional justice”, these issues now belong to the basic inventory of an enlightened and self-reflective treatment of a dictatorial and violent history. Can a liberal constitutional state take up the mission of atoning for the state-sanctioned injustices of a defunct predecessor regime by punishing the perpetrators and rehabilitating their victims? By what means can the state assure that the rule of law is not derailed, that the fragile balance is kept between the victims’ expectations of justice and the principles of a legitimate legal system? Can the interests of a democracy in consolidation be protected when the institutions of the state itself provide the primary means for pursuing the difficult mission of overcoming the former dictatorship's consequences?