58 No. 77 JUSTICE globe, found in Argentina, and extradited to Germany. Even then, he was permitted to leave Argentina only after the German government paid a DM 400,000 “fee.” In Germany, Schwammberger was faced with an active prosecutor, Kurt Schrimm, who had been involved in the pursuit of the accused and was determined to see justice done. Providentially, Schrimm was presenting his case to Presiding Judge Herbert Luippold, the Chief Judge of the state of Baden-Wurttemberg, who was committed to overseeing an “absolutely fair trial.” Luippold’s approach to the trial was far more receptive to an open hearing than had been the case in earlier years and represented a junction of an active prosecutor with a willing court. Schwammberger’s 1991 trial was characterized as that of “The Last Nazi” when he was convicted in 1992 after a months-long proceeding.12 The outcome is remarkable for two things. First, it did not depart from traditional German legal norms. Schwammberger was convicted of seven counts of murder and 32 counts of accessory to murder.13 The convictions were based on eyewitness testimony and documentary evidence. There was no new legal ground explored that would have opened the aperture for mass atrocity convictions. Schwammberger’s case is remarkable because the court was willing to hear the case and convene a trial. This is a clear break from the postwar German record of avoidance of accountability. Second, the court did not feel bound by the earlier reluctance to take on cases of extra-territoriality. Signally, the trial exemplified a new commitment of the state, as seen in the fee paid to the Argentinians, the persistence of Schrimm as an active prosecutor, and the willingness of Judge Luippold to allow the case to be heard. One further development that aided the move toward greater accountability was the availability of previously sequestered wartime documents. The Soviets and their client states had been very reluctant to share documents with the West unless there was a perceived advantage in doing so. The fall of the Iron Curtain opened many heretofore closed sources that enabled new investigations which Germany's Central Office for the Investigation of National Socialist Crimes exploited. Schwammberger’s trial and conviction set the conditions for phase four. The fourth phase emerged in the 1990s and represents a further shift in legal theory, prosecutorial will and judicial receptiveness. This transformation was catalyzed by several convergent factors: the fall of the Berlin Wall with the concomitant opening of Eastern European archives; the development of Joint Criminal Enterprise (JCE) doctrine in international tribunals; and Germany's evolving national consciousness regarding Holocaust responsibility. The collapse of the Soviet Union and the increased awareness of the crimes of the Third Reich were both products of the passage of time. The principle of JCE requires additional discussion. The concept of Joint Criminal Enterprise (JCE) emerged from the International Criminal Tribunal for the former Yugoslavia (ICTY) and represents one of the most significant developments in international criminal law since Nuremberg.14 JCE doctrine recognizes that mass atrocities are inherently collective enterprises that require the coordinated actions of numerous individuals, many of whom may never personally commit violence but whose participation is essential to the overall criminal endeavor. JCE identifies three categories of liability. The first category addresses participants in a common plan who share the intent to commit crimes. The second addresses individuals who participate in crimes in which the perpetrators recognize the systemic nature of the violence they are committing. The third category, which has proven to be the most controversial among legal scholars and practitioners, extends liability to individuals who participate in a criminal enterprise even when foreseeable crimes fall outside the enterprise's direct purpose but are a natural consequence of its execution, that is participation, however ancillary, is known to lead to criminal acts. 12. Much of the energy that drove the Schwammberger prosecution derived from the belief that it was the last significant trial of a Nazi war criminal because the perpetrators of significant rank were aging out of the population and because the documentary evidence available to western nations had been largely exhausted. 13. “Josef Schwammberger (1912-2004),” JEWISH VIRTUAL LIBRARY (Dec. 4, 2004), available at https://www. jewishvirtuallibrary.org/josef-schwammberger 14. United Nations, “The International Criminal Tribunal for the former Yugoslavia.” UN International Residual Mechanism for Criminal Tribunals, available at https://www.icty.org/; the full and official name of the tribunal is the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.
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