German woman, 91, charged in 260,000 Auschwitz deaths

[dps]

She could also argue that she didn't realize the SS was a criminal organization when she joined, and thus lacked mens rea. She could argue she was coerced into staying (probably not too hard, I assume you couldn't just quit the SS), and her actions in the SS did not directly tie into criminal activity.

That last part is irrelevant. I suppose the other two parts would be difficult to prove.

The first part would be very easy to prove, but it would be irrelevant:

In cases where a group or organisation is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organisation is considered proved and shall not be questioned.

Now, that wouldn't pass constitutional muster in the US, because it's clearly ex post facto, but she's not being tried in the States.

No--if the mens rea concept is necessary, and I have no idea but assume it is, a person has to act with a guilty intent. To the extent that joining the SS is a crime as it is a criminal organization, she had to understand that it was engaged in criminal activity at the time she joined. The defense that she didn't understand would be different than arguing that arguing that the SS was not a criminal organization.

Ordinarily, I'd agree with you, but in the case of the SS, how could anyone have known that they were joining a criminal organization when it hadn't been declared to be such?

[alfred russel]

Ordinarily, I'd agree with you, but in the case of the SS, how could anyone have known that they were joining a criminal organization when it hadn't been declared to be such?

If you had a sense of what the SS was up to, then you should have understood it was a criminal organization, even if it wasn't formally declared as such.

[Zanza]

Murder obviously was a crime in Germany between 1933 and 1945, so it is fairly easy to prosecute people for that. Doesn't matter if they were in the SS or whether the SS was a criminal organisation. Membership in a criminal organization would also fall under the statute of limitations,whereas murder does not and can be prosecuted 70 years later as well.

[Zanza]

Now, that wouldn't pass constitutional muster in the US, because it's clearly ex post facto, but she's not being tried in the States.

I've never heard about anyone being prosecuted for exclusively membership in the SS in West Germany by German courts so the Allies declaring the SS a criminal organization is meaningless under German law. The SS and other organizations like the NSDAP are considered anti-constitutional though and you may not use their symbols.

[Capetan Mihali]

FWIW, mens rea is not limited to "intent"; it usually encompasses "knowledge," and often "recklessness" or "gross negligence" (or for a particular misdemeanor in NSDAP-Vermont, sometimes even simple/civil-law negligence :rollingeyesoutofhead:).

[Capetan Mihali]

Murder obviously was a crime in Germany between 1933 and 1945, so it is fairly easy to prosecute people for that.

I'm not sure.  The great jurist Carl Schmitt (who I think is one of the most profound political thinkers of the 20th century) infamously provided the foundation for the legality of the "Night of the Long Knives" killings -- after the fact, of course -- by virtue of the Führerprinzip.  To identify those killings as murders, i.e. criminal killings, is to declare "criminal" the entire authority of the German government of 1934.  Which fundamentally brings us back where we started...

[Zanza]

The opinion of a Nazi apologist doesn't count for much in Germany after 1945. He might have been a brilliant thinker in the 1920s, but after the Enabling Act, he was just another Nazi stooge.

[Capetan Mihali]

My personal admiration for the work of Schmitt (and Heidegger and Fallada) aside, "murder" has no inherent meaning apart from a social- and state-ordained code of legality.  The "Shooting Gallery" thread is a good contemporary example.  The same Nazi apparatus that rendered the Final Solution legal also imposed six-month prison sentences on Bulgarian hash dealers.

[Razgovory]

The opinion of a Nazi apologist doesn't count for much in Germany after 1945. He might have been a brilliant thinker in the 1920s, but after the Enabling Act, he was just another Nazi stooge.

Judging by the short sentences and early releases of numerous high ranking Nazis and the reticence in prosecuting Nazis by the German government from the 1950's on, I think the opinion of Nazi apologists counted for quite a lot.  If it didn't, these people would have been prosecuted in 1955 rather then 2015.

[Valmy]

Judging by the short sentences and early releases of numerous high ranking Nazis and the reticence in prosecuting Nazis by the German government from the 1950's on, I think the opinion of Nazi apologists counted for quite a lot.  If it didn't, these people would have been prosecuted in 1955 rather then 2015.

If they prosecuted all the Nazis in 1955 society would not have been able to function. The US was very complicit in making sure de-Nazifying did not get taken to stupid proportions since we needed West Germany. When the majority of society was complicit what are you going to do? Same deal with the Stasi in East Germany.

[The Minsky Moment]

"a 91-year-old woman [has been charged] with playing a role in the deaths of 260,000 Jews at the infamous Auschwitz death camp."

Accusations are not facts.

[The Brain]

These ancient people they go after, it seems weird to me that the government didn't know they were in the SS/whatever. I get the impression that at least in some cases the government knew they were SS for many years before prosecuting. NB I could be completely wrong. To me it seems unsound for government to be able to withhold prosecution indefinitely and keep it over people all Damoclean and shit. Speaking of which, or get off the pot.

[Valmy]

These ancient people they go after, it seems weird to me that the government didn't know they were in the SS/whatever.

Don't ask, don't tell.

[garbon]

"a 91-year-old woman [has been charged] with playing a role in the deaths of 260,000 Jews at the infamous Auschwitz death camp."

Accusations are not facts.

So it is an accusation that she was charged?

[Razgovory]

Judging by the short sentences and early releases of numerous high ranking Nazis and the reticence in prosecuting Nazis by the German government from the 1950's on, I think the opinion of Nazi apologists counted for quite a lot.  If it didn't, these people would have been prosecuted in 1955 rather then 2015.

If they prosecuted all the Nazis in 1955 society would not have been able to function. The US was very complicit in making sure de-Nazifying did not get taken to stupid proportions since we needed West Germany. When the majority of society was complicit what are you going to do? Same deal with the Stasi in East Germany.

Oh, I'm fully aware that the US was complicit.  Denazification never got near "stupid proportions".  As the article shows we had let camp workers go.  I don't think they their particular expertise was required in the new Germany.  Justice should not predicated on what's convenient.  Simply because there are a lot criminals doesn't mean you shouldn't punish them.  If we hung every SS man, I don't think it would have undone civilization.  The Soviets came down much harder and East Germany wasn't an anarchy.