War Crimes Ping-Pong

The Last Nazi Suspect, A Croatian in Austria, Continuesto Elude Prosecution Because of Legal Foot Dragging

News | Izvor Moralic | April 2007

Another year of frustration has passed in one of the last cases in Austria against an alleged Nazi war criminal.

The suspect: Milivoj Asner, 94 year-old Croatian born resident of Klagenfurt. The charge: The persecution and deportation of Jews, Serbs and Roma during his years as chief of police in the Croatian town of Pozega, then part of the Nezavisna Drzava Hrvatska (NDH), the Independent State of Croatia headed by the fascist Ustasa (Insurgent) regime of Ante Pavelic from 1941 to 1944.

Following what had seemed like a breakthrough on Jan. 31, 2006, when issues of citizenship and jurisdiction seemed to have been resolved, all efforts by the Simon Wiesenthal Center in cooperation with the Croatian government continue at a standstill over legal technicalities.

Milivoj Asner disappeared from Croatia during the chaos that followed the demise of the Third Reich and its satellites. He resurfaced in Austria, gaining citizenship in 1946 and only returning to Croatia in 1991 after it regained independence.

Asner has never been tried for the charges against him, and is one of the last individuals to have been found under the terms of the Simon Wiesenthal Center’s Operation Last Chance. His pursuit has come to a stalemate, though, given the numerous legal implications the case features, such as unclear citizenship issues, and a general unwillingness by Austria to extradite Asner.

His alleged involvement in the persecutions during the NDH years would probably have gone unnoticed if it were not for amateur historian Alen Budaj, who in 1999 uncovered records incriminating Asner in Pozega’s city hall that implied his involvement in the deportation of Serbs, Jews and Roma in 1941-1942.

The Croatian State Attorney then began an investigation into the case, but Asner fled to Klagenfurt before he could be taken into custody, and so far all attempts to bring him to trial have failed.

Following extradition requests from Croatia, the Austrian authorities at first declined, on the grounds that Asner’s Austrian citizenship prevented them from handing him over. However, Asner appears to have lost his citizenship in 1992 when he applied for Croatian citizenship.

"The day after my Jan. 31, 2006 press conference in Vienna, an official of the Carinthian Ministry of the Interior announced that Asner had lost his Austrian citizenship in 1992, when he applied to re-obtain his Croatian citizenship without getting prior permission from the Austrians," said Efraim Zuroff, Director of the Simon Wiesenthal Center’s Israel office and Coordinator of the Nazi War Crimes Research.

"That should have paved the way for his extradition, but then the Austrians claimed that he could not be extradited for health reasons. That is where the case stands at the moment."

The Croatian government and the Simon Wiesenthal Center continue to push for extradition, stymied by Austria’s reluctance due to Asner’s age and poor health.

The Austrian Ministry of Justice has confirmed that Asner, now 94, is in poor mental condition, according to a psychiatric certificate issued during the summer of 2006, as ORF has reported, which has probably guaranteed him a peaceful remainder of his life. It is questionable whether the efforts of the Wiesenthal Center and Operation Last Chance will be fruitful.

Finding and bringing to justice the few remaining WW II war crimes suspects has become almost a moot point. These people have already lived out the most of their lives, and their imprisonment, if found guilty, would be but little consolidation for the victims of the crimes.

However there still seems to be a sense of setting the record straight. "If Asner is too old for a court hearing, the investigation can be stopped. The trial though can not, since war crimes do not come under the statute of limitations," said Rudolf Macek, the State Attorney for the region of Pozega-Slavonia in an interview for the Croatian News Agency Hina.

Austria has often been difficult legal terrain for trying alleged war criminals. The country has not convicted anyone charged with war crimes in thirty years, and all efforts to do so have been met with resistance and foot dragging.

It remains to be seen what will come of this case, given Austria’s reluctance to extradite and its general unwillingness to come to terms with its past. Earlier affairs have left a bitter aftertaste.  Perhaps most prominent was a painful case concerning then-President Kurt Waldheim, whose alleged involvement in operations of the German army in the Balkans during WW II divided the country in the latter half of the eighties,

This record has led to Austria’s being placed in the lowest category of the Wiesenthal Center’s 2006 ranking of countries efforts to pursue war criminals. Category F features "those countries which refuse in principle to investigate, let alone prosecute, suspected Nazi war criminals despite clear-cut evidence that such individuals were residents within their borders."

The Asner case is not the only one that has sparked controversy ever since his identification in 2004. Another concerns Erna Wallisch, a former guard at camp Majdanek in Poland. The Wiesenthal Center has continued to press Austria to prosecute Wallisch, yet according to the Austrian authorities the case has already come under the statute of limitations, following the application of Tatortrecht that provides that an individual must be charged according to the laws applicable in the country at the time when the crime was committed.

The Polish laws of the years during which Wallisch served as a guard at the camp state that a case falls under the statute of limitations after twenty-five years.

Because of this, a trial of accessory to murder failed in the 1970’s and according to Christoph Pöchinger, spokesman of the Ministry of Justice, there is not enough evidence to try Wallisch for murder, producing another judicial stalemate.

Not all legal scholars agree, however. In a discussion on a similar case from the seventies, Friedrich Forsthuber, Judge at the Austrian Supreme Court, found that the paragraphs dealing with murder and genocide could and should not fall under Tatortrecht.  Wilfried Garscha, coordinator of the research institute Nachkriegsjustiz (post war justice) came to a similar conclusion, claiming that applying Tatortrecht created an imaginary legal situation that did not exist at the time the crimes were committed.

Time is running out for those seeking justice, and Efraim Zuroff, Director of the Simon Wiesenthal Center’s Israel office and Coordinator of the Nazi War Crimes Research, is doing everything possible to break the deadlock.

"The Simon Wiesenthal Center has consistently sought ways of influencing the Austrian government to extradite Asner to stand trial in Croatia" Zuroff told The Vienna Review, "and we continue to seek any legitimate way to hold him accountable for his crimes in Pozega during World War II."

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