Holocaust survivors sharply criticize German justice authorities

According to reporting in the New York Times, recently the International Auschwitz Committee (IAC) has criticized the German justice system for lack of activity. The specific subject of their complaint is the case of Oskar Gröning (age 95), a former SS member and accountant at the Auschwitz death camp.

In July 2015, the District Court in Lüneburg sentenced him to four years in prison for aiding in the murder of 300 000 people. Both he and several attorneys for the victims of Auschwitz have filed appeals with Germany’s Federal Court of Justice over that verdict.

According to IAC Vice President Christoph Heubner (age 67),  the court has not yet decided the case more than one year later, even though the decision will have groundbreaking consequences both in relation to the realistic assessment of the murderous system in the concentration camps as well as in relation to the roles played by all the SS members involved.” He also said the survivors of the German concentration and death camps are outraged.

Heubner said in a statement published by the New York Times that the Auschwitz survivors “are harshly critical of German justice, whose almost complete inaction regarding the judgment of SS perpetrators they had to follow for decades.” If the outcome of the trial in Lüneburg seemed like a sign of a new approach by the German court, “the current circuitous course of the appeals proceeding is again confirming their basically negative experiences,” he said.

Roman Kent (age 90), the president of the IAC, a former Auschwitz prisoner living in New Yorku, told the New York Times that:  “Auschwitz survivors do not have as much time as German justice. We are all old, and we have had to experience the fact that the vast majority of SS perpetrators have never seen the inside of a German courtroom. That is why we want, during our lifetimes, to know whether Germany’s Federal Court of Justice takes a realistic view of the Nazi German death factories and will consider all of the SS members working in them to be co-responsible for those murders.”

Awareness of systematic murder while it is underway implies responsibility for it

It is more than 70 years since the Second World War ended. Why, suddenly, is there such a hurry in this matter?

Previously the German justice system only convicted SS members of the crimes committed in the concentration camps if it could be proven that a specific behavior had harmed somebody – behavior that went above and beyond their customary service duties. Proving such behavior succeeded only rarely, since most eyewitnesses to the behavior who were victims had either perished directly in the camps or soon after the war, and the surviving perpetrators kept quiet.

If somebody had “just” fulfilled orders to commit murder or to torture somebody, what applied in that case was the so-called “State of Emergency Order”, mainly if the perpetrator faced a court-martial or the death penalty at the time for failing to obey. Just recently it has been proven that many guards at the concentration camps were, at their personal requests, ordered to the front without ever being punished for the decisions they made at the camps.

It was not until the case of John Demjanjuk, a Ukrainian former guard at the Sobibor camp, that a court in Munich recognized in 2011 that for those who had voluntarily long been employed at such facilities, that in and of itself was enough evidence that the suspect had contributed to the commission of a felony. Both the defendant and the attorneys for several victims of that camp or their surviving relatives appealed that verdict.

Germany’s Federal Court of Justice did not manage to rule on those appeals before  Demjanjuk died. Since that court is similar to the Czech one – overwhelmed with appeals – the time it takes to process cases is not established by law.

In some cases that encounter increased public interest, these procedures are accelerated. Why, in such an exceptionally serious case, this is not happening now, is what these last survivors are asking – without their frequently very painful testimony before the court, the defendant cannot be convicted of committing the crimes in question.

Those opposed to Gröning’s prosecution object that he will be serving a sentence for the crimes of his former superiors, almost all of whom evaded justice. The German justice system would actually, according to the verdict of the Lüneburg court, have to send more than  8 000 former employees of the camp at Auschwitz to prison, but German media report that only a few remain alive today, and only 43 have ever been convicted and sentenced.

Who Oskar Gröning was and what he did, then and now

Born in 1921 in the northern Germany town of Nienberg, Gröning trained as a bank trader and voluntarily joined the SS at the age of 19. One year later, he was given a “special assignment” without further explanation, and according to his own words, it was a job that was important but unpleasant.

As of September 1942 he worked as an accountant at the Auschwitz concentration camp, creating an inventory of the property that wasconfiscated from the prisoners and sending the confiscated money and valuables to Berlin. According to his own words, he helped “from time to time” at the unloading ramp into the camp, the place where it was decided which of the newly-arrived prisoners would be immediately murdered in the gas chambers or which would be subjected to murder through the torturous method of excessively hard labor, which was the equivalent of a slow death.

Those staffing the unloading ramp took away the last items of property that the newly-arrived prisoners had in their possession, the only things left to them after their deportation from their homelands or from previous camps. Gröning has pointed out that he repeatedly requested to be ordered to the front, and in 1944 he was.

At the end of the war he was captured, held in a British prison camp in Germany, and then held in Great Britain itself where, among other things, he performed with a choir. His name turned up on a list of 300 former SS members whose extradition the Polish authorities were seeking on suspicion of war crimes.

According to the British Government, the evidence was not sufficient to charge Gröning, but they also did not extradite him because it was a priority for Great Britain to build up the German economy again, as that was a prerequisite for the stability of the new Germany. That motivation would have prevented the imprisonment of tens of thousands of former SS members who had “just” followed orders.

Like it or not, he had to do it – or not

Gröning, therefore, worked for decades after the war in his home town, absolutely undisturbed, as an accountant in a small glass factory. During the 1980s, criminal proceedings were begun against him and then halted for lack of evidence.  

After that, he no longer had any reason to keep quiet. When, in 1985, an acquaintance loaned him a book by a Holocaust denier about the “Auschwitz lie”, he returned the book with a written message that stated:  “I saw it all, the gassing, the cremations, the selections. There were 1.5 million Jews murdered at Auschwitz. I was there.”

Gröning also appeared as a witness in the trial of another SS member. The testimony of this former participant in the operations of the industrial murder camp at Auschwitz bolstered the position of those eyewitnesses from among the victims who were otherwise seen as having every reason to lie, exaggerate or destroy the reputations of those who had been employed at the camps.

In 2005, Gröning provided a nine-hour interview to the BBC. He has always denied ever actively harming anybody.

The German magazine Der Spiegel quoted him as saying the following about his role at Auschwitz:  “I would paraphrase it as like being a cog in a gear. If you want to call that guilt, then I am unwillingly guilty. From the legal point of view, I am innocent.”

Credit to the attorneys for the victims

A key player in the trial of Göring is Thomas Walther (age 73). He is a former German state prosecutor and judge from the Bavarian town of Lindau.

Shortly after his retirement, Walther became an investigator with the Central Authority for Prosecuting the Crimes of Nazism in Ludwigsburg. When he ascertained how much information the state had access to and how little it was using to prosecute specific individuals, he opened a private law office and began representing the victims of Nazi crimes.

Mainly thanks to his research, he has managed to bring Gröning to trial and is representing 14 surviving former prisoners. He was also responsible for the precedent-setting first-instance verdict against Demjanjuk.

State Attorney Jens Lehmann has limited the scope of the charges against Gröning to the period at the beginning of the summer of 1944, when mainly Hungarian Jews were deported to the camp, tens of thousands of  them daily. The SS had bragged that they had managed to “mop up” as many as 5 000 people every day there.

Due to a lack of personnel, it is documented that all of the employees of the camp had to help out once in a while at the unloading ramp. Lehmann therefore sought a prison sentence for Gröning of three and a half years.

If such a sentence were to have been handed down, it would have been reduced by 22 months due to the disproportionate delays in the prosecution from the side of the state. The remaining two years of the sentence, given the advanced age of the defendant, would have been commuted into a suspended sentence, which under German law is possible only when a prison sentence is two years in length or less.

Judge Franz Kompisch, however, handed down a four-year prison sentence in his first-instance verdict, and by law that cannot be postponed through suspension. During his announcement of the verdict, he expressed his appreciation for the defendant’s mental and physical efforts to attend the trial and testify.

The court said that Gröning is an exception compared to the mass of former SS members who during their own trials either denied what they had done, minimized what they had done, or tried to cast it in a better light. Unlike these other people, Gröning has admitted moral responsibility and expressed deep regret.

On the other hand, it is also the case that after the innocent prisoners arrived at the fully-functioning German death factory, Gröning contributed to their deaths. Witness Eva Korová, on whom Josef Mengele performed his medical experiments at Auschwitz, shook Gröning’s hand in the courtroom in a gesture of reconciliation, out of gratitude for the fact that he had publicly testified to the prisoners’ suffering.

After the verdict was handed down, Gröning appealed, as did several of the victims. Even if the appeals court were to uphold the first-instance verdict and it were to take effect, it is more than likely that the court would accede to any eventual request made by the convict and recognize his physical inability to undergo time in prison. 

Why the anticipated verdict is so significant for survivors

However Germany’s highest court decides, its decree will forever be a part of the German legal order. The lower courts and any other person will be able to appeal to that decision in questions of whether a particular behavior constitutes a violation of rights in Germany.

If the Federal Court of Justice  recognizes the verdict handed down by the Lüneburg court, it would mean that in the future, every inhabitant of Germany will have to thoroughly reflect on whether his or her work might not somehow contribute to the operation of a facility where human beings are murdered.

If it does, and if that person continues to perform that work, then even without ever directly harming somebody, that person risks criminal prosecution. Should the Federal Court of Justice decide that Gröning is guilty, he can file a complaint with the European Court of Human Rights in Strasbourg.

The eventual judgment in that case would become part of the European law that applies in all the Member States of the European Union and those belonging to the Council of Europe. For that to happen, Gröning would have to live to the age of 100 at least.

Not even the European Court of Human Rights, however, has a time limit within which it must rule, and such cases frequently take several years to decide. Why is the verdict in this case so significant for the survivors?

By upholding the verdict of the Lüneburg court, Germany’s highest court would confirm that the German justice system has, for decades, seriously violated the survivors’ rights. Such a decision would give them a certain legal guarantee by finding that any perpetrators of a future Holocaust would be seriously violating German law, even if “just” in the role of an accountant.