57 Spring 2026 acceptability in the new Germany. The documents were often referred to as “Persilscheine” after a popular detergent, that effectively wiped clean an individual’s Nazi past. The lessened scrutiny allowed many perpetrators to reintegrate into German society and into German officialdom, including the judicial bureaucracy, with minimal consequences. In effect, the country underwent a de facto re-nazification period. As historian Richard Evans notes, the coming of the Cold War fundamentally altered priorities, with both East and West Germany finding it expedient to rehabilitate former Nazis rather than pursue comprehensive accountability.5 During this period many of the most egregious perpetrators of mass murder, including SS officers who were convicted under Allied aegis, were released by the Adenauer government. Those released early included three of the convicted IMT defendants, Erich Raeder, Walther Funk, and Konstantin von Neurath.6 It is not hyperbole to declare the second phase as an era of avoidance of prosecution, markedly shorter sentences, and significant amnesty.7 To be sure, prosecutions slowed dramatically but did not stop altogether as evidenced by the examples of the Ulm Einsatzgruppen trial of 19588 and the Frankfurt Auschwitz trial of 1963.9 The third phase, spanning roughly from the 1970s through the 1990s, saw periodic high-profile prosecutions but remained hampered by restrictive legal interpretations, statutes of limitation, and evidentiary requirements. Prosecutors struggled to prove individual guilt under the traditional legal frameworks of the Strafgesetzbuch (StGB), Basic Law of 1949, that required direct evidence to prove the specific charges of murder and accessory to murder which placed the bureaucratic machinery behind the genocide beyond the law. They were further hampered by positivist interpretations of the German Basic Law which technically enabled the prosecution of crimes committed beyond German borders but for practical purposes, was largely ignored by the German legal establishment, a condition that abetted the further avoidance of accountability. Additionally, the German Criminal Code, Strafgesetzbuch, proscribed the prosecution of non-German criminals acting on behalf of the National Socialist regime whether in Germany or in occupied lands, for example the approximately five thousand non-German SS concentration camp guards. Thus, as a function of restrictive statutes, expiring statutes of limitation, the approach to extra-territoriality, and of exclusionary citizenship requirements, many of the most egregious perpetrators of the mass violence crimes of the Holocaust were not subject to prosecution in post-war German courts. The consequences of the self-imposed extra-territorial restriction became evident in this third phase. The ability to prosecute non-Germans acting on behalf of the state was not enabled until a legislative change in 2002.10 Another significant development was a generational shift as many of the former Nazis who had occupied positions in the judicial system since the end of the war retired or otherwise aged out of the process, paving the way for a younger coterie of prosecutors and judges who would approach cases without the vested interest in silence that characterized their predecessors. This phase marked the advent of a tangible confluence of active prosecutors and willing judges. An example of the beginnings of that confluence was the successful prosecution in 1991 of a former labor camp commandant, Josef Schwammberger. The trial marked a sea change in war crimes prosecutions in Germany.11 The proceeding occurred toward the end of the third phase and only after Schwammberger had been sought across the 5. Richard J. Evans, THE THIRD REICH AT WAR 747-48 (The Penguin Press 2009) (advanced uncorrected proof). 6. Telford Taylor, THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR 616-17 (Alfred Knopf 1992). 7. C. F. Rüter, “Die Ahndung von NS-Tötungsverbrechen: Westdeutschland, Holland und die DDR im Vergleich; Eine These,” in KEINE “ABRECHNUNG”: NS-VERBRECHEN, JUSTIZ UND GESELLSCHAFT IN EUROPA NACH 1945 180-81 (Claudia Kuretsidis-Haider and Winfried Garscha, eds., Akadamische Verlagsanstalt 1998). 8. The Ulm trial provided a stimulus to the German program of post-Holocaust justice or, as Adelbert Ruckerl described it, a “decisive impulse” to energize the pursuit of war criminals. 9. Annette Weinke, “Between Demonization and Normalization: Continuity and Change in German Perceptions of the Holocaust as Treated in Post-War Trials,” in HOLOCAUST AND JUSTICE: REPRESENTATION & HISTORIOGRAPHY OF THE HOLOCAUST IN POST-WAR TRIALS 211 (David Bankier and Dan Michman, eds., Berghahn Books 2010). 10. See the Völkerstrafgesetzbuch VtGB (Code of Crimes Against International Law) enacted in 2002 to comport with the Rome Law, available at https://www.gesetze-im-internet.de/englisch_vstgb/englisch_vstgb.html 11. Nesha Starcevic, “Former Nazi Lieutenant [sic] Goes on Trial, Charged in Thousands of Jewish Deaths,” ASSOCIATED PRESS NEWS (June 26, 1991), available at https://apnews.com/dd23a7190b490db4eca44187735a65f7
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