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July 9, 2014 By:
The Necessity and Complexity of Prosecuting Nazi War Crimes
Attorney Alan Behr still has regrets about a Nazi war criminal case he worked on as a law student four decades ago.
Now the New York attorney, who lost his great-grandfather at the Dachau concentration camp and had other family members survive Auschwitz, offers advice for prosecutors making the case against a recently imprisoned 89-year-old who had served as a guard at Auschwitz:
“Before you do something where you could later say, ‘Did I act in the wrong way?’ think, ‘Am I showing by example the correct way to behave?’ ” Behr said. “We have to treat someone who served an injustice in a just way to show that justice prevails.”
Federal authorities arrested retired toolmaker Johann Breyer at his home in Northeast Philadelphia last month. The German government seeks his extradition after charging him with 158 counts of complicity in the commission of murder; each count representing a trainload of Jews who were taken to be killed at Auschwitz.
Breyer’s attorney has said his client has early signs of dementia and other health issues, and The New York Times described him as looking “thin and pale” and “shuffling unsteadily” in court.
In this and other Nazi war crimes trials, the age of the defendant and the passage of time since World War II inevitably spark discussion over what a trial would involve — given the difficulty of producing evidence 70 years after the crime — and over what a guilty verdict would actually mean, thus raising the question: Is it possible to be too late to pursue justice against alleged Nazis?
The Jewish Exponent turned to Behr, other attorneys involved in the prosecution of suspected Nazi war criminals, a professor of Holocaust/genocide studies and a local survivor for their thoughts on the challenges of prosecuting Breyer.
Breyer has admitted that he served as a guard at Auschwitz but said he had nothing to do with the 1.5 million Jews who were slaughtered at the camp. His attorney said he worked in the prison section of Auschwitz, not in the extermination area.
That’s not a viable excuse, said Eli Gabay, a Philadelphia attorney who worked on the case against John Demjanjuk, who was accused of being “Ivan the Terrible,” a Nazi guard responsible for killing thousands of Jews at Treblinka.
Demjanjuk settled in Cleveland after the war, had his citizenship revoked, faced a trial in Israel in which he was found guilty before the ruling was struck down and was appealing a guilty verdict in Germany when he died. The German court ruling opened the way for cases such as Breyer’s by setting the precedent that Nazis could be convicted by proving they were a guard at a death camp rather than showing direct evidence linking them to a specific killing.
“You cannot be in Auschwitz, Treblinka or Sobibor without understanding the horrific nature of what these camps were doing,” Gabay said. “Any and every guard at these death camps could be tried. Just because that person made it to have a lovely home in Northeast Philadelphia should not allow for him to get away.”
But in Behr’s mind, Breyer already escaped justice by living a civilian life all these years.
“Will incarceration reform him?” asked Behr, a University of Pennsylvania graduate. “That’s all abstract thinking here. If you lived your best adult years in freedom, you got away with it. There is no way to effectively punish a person, and those are considerations that you have to take into account.”
The U.S. government first tried to revoke Breyer’s citizenship in 1992. In 2003, a federal judge ruled that Breyer could not be deported because, although he was born in Czechoslovakia, he was considered a U.S. citizen by virtue of his mother’s birth in Manayunk. And he did not give up that status when he joined the SS because he was under 18, the judge ruled.
The thinking that guides Behr today is much different from his mindset as an intern with the United States Attorney’s Office for the Southern District of Florida. There, he worked on the case against Fyodor Fedorenko, a 70-year-old who had surrendered as a soldier in the Red Army when the Nazis invaded the Soviet Union. Fedorenko later was recruited to join the SS and served at Treblinka.
During the 1978 trial, which decided whether Fedorenko’s citizenship should be revoked, Holocaust survivors identified Fedorenko and recounted the atrocities he and other Nazis committed against them and their loved ones. The judge, however, cleared Fedorenko of all charges.
“If Fedorenko had refused to carry out orders at Treblinka there is little doubt from the evidence that his execution would have been swift and sure,” the judge stated, according to an article in the Sun Sentinel.
An appeals court later reversed the ruling, and Fedorenko was deported to the Soviet Union. There, he faced a trial for treason and his actions at Treblinka and was executed.
At the time, as a student at Columbia Law School, Behr said he was convinced he was doing the right thing by working to convict Fedorenko. But he later came to the same conclusion as the first judge in Florida. And now he proceeds with caution when considering cases such as Breyer’s.
“It gave me a good moral lesson that things may not be as certain or as black-and-white as they may first appear,” he said.
Despite his support for putting Breyer on trial, Gabay acknowledged that even with the precedent set in the Demjanjuk case, prosecuting such cases is hard.
“It is very difficult to take historic events on the monumental scale of the Holocaust and to place them into the confines of the modern court room,” said Gabay, who also was part of a commission that determined a body found in Brazil was that of Josef Mengele, a Nazi who performed experiments on prisoners at Auschwitz.
“Identity plays a major role in all of these trials. Documents need to be tested for their paper content, ink, signatures. The memory of individuals has faded and people have changed.”
Breyer’s age and health create another hurdle for prosecutors. In a similar case against Hans Lipschis, a 94-year-old who was suspected of serving as a guard at Auschwitz before living for decades in the United States after the war, a German court ruled in February that he was unfit to stand trial.
“The Justice Department will pursue these cases as long as there are living perpetrators who are capable of being prosecuted,” said Eli Rosenbaum, who has been working for the Justice Department, prosecuting suspected Nazi war criminals, since 1979.
Ever since then, Rosenbaum said, he has heard journalists speculate that each case could be the last Nazi trial — a Time headline in 2009 read, “Demjanjuk’s Trial: The Last Nazi War-Crimes Defendant” — but Rosenbaum is “wary of premature conclusions.”
While it’s true that more suspected war criminals are dying off, “the so-called ‘biological solution’ to the Nazi cases,” he said, “we’re not there yet.”
The challenges of time and age do not make Marcia Sachs Littell, a retired professor of Holocaust and genocide studies at Richard Stockton College of New Jersey, have second thoughts about trying suspected war criminals. She makes annual academic trips to Europe and said she has spoken to young Germans who ask, “What do I have to be proud of about being a German?”
“They have a responsibility to future generations to pursue the perpetrators, even if they’re 99 years old,” said Littell. “It’s part of restoring the moral integrity of the county for future generations.”
And, agreed Gabay, it’s part of “the promise that we make to victims and their families.”
For 85-year-old Bala Cynwyd resident Michael Herskovitz, who survived the camp where Breyer was stationed, the trial absolutely matters.
When Herskovitz was 13, he and his parents and three siblings were shipped from Czechoslovakia to Auschwitz. Upon their arrival, the guards immediately broke the family into three lines.
“My mother did not want to let go of the child,” Herskovitz said, referring to his younger brother. “So they went with the handicapped and the old folks straight to the gas chamber.”
Herskovitz later was separated from his father, who also was killed. He and his sisters survived. After the war, he went to Czechoslovakia, then to Israel and eventually arrived in Philadelphia, where he opened an auto repair shop.
As for Breyer, Herskovitz said, “If he did the crime, he should be prosecuted. Not so much for him, but his family should know that their father, their grandfather, was prosecuted for this.”