We have become used to the fact that the survivors’ numbers are dwindling. 1500 survivors of Auschwitz gathered in January of 2005 to mark the sixtieth anniversary of the camp’s liberation by the Red Army in 1945, but just one-fifth as many came to Poland this last January to mark the seventieth anniversary. Nor is that at all surprising. There were no children among the survivors of the camps. The liberated teenagers of 1945 are in their mid-eighties today. And those who were older than that then are older than that now as well. But more surprising to notice, at least to me personally, is that the perpetrators are also dwindling. There were, after all, also no children working in any of the camps…and so the survivors in those ranks—the actual murderers and their countless willing accomplices in the Nazi war against the Jews—they too are dwindling and becoming fewer and fewer with each passing year.
Given that their survival into old age itself could entirely rationally be taken as an insult to their victims, it seems odd even to suggest that one could, let alone should, care. Nor is it irrelevant in this context to note how many of those who made the camps into the world’s most efficient killing centers faced neither prosecution nor, needless to say, punishment for their crimes. (Of the roughly 6,500 men and women who ran Auschwitz from 1941 to 1945, no more than fifteen percent were eventually convicted of war crimes.) Some comfort comes from knowing that death is the great leveler of the playing field of justice…and that the only court from which escape is possible is the earthly tribunal, not the heavenly one. I actually do find great comfort in that thought, but I still find it unpalatable in the extreme to imagine the men and women who ran Auschwitz returning to their homes and their families after the war ended, free either to regret or not to regret their role in the murder of millions but otherwise unencumbered by their past lives as purveyors of genocide.
But now, almost at the very last moment, the rules of the game have changed. When the war ended and the war crimes trials conducted by the Allies were finally over, the German government focused on prosecuting the upper-echelon Nazis who actually gave the orders that those who were “just following orders” were following. But things changed with the successful prosecution in 2011 of John Demjanjuk, who was found guilty of being an accessory to the murder of 27,900 Dutch Jews at Sobibor. And although Demjanjuk remained technically innocent under German law because he died while his appeal was still pending (see above, regarding the heavenly tribunal), his conviction made possible the redirection of German prosecutorial efforts towards those who by their actions were merely complicit in the murder of millions.
And now that the trial of Oskar Gröning has begun, we can see what that idea looks like when translated from the language of legal theory into the nuts-and-bolts like of the German criminal justice system. Oskar Gröning is ninety-three years old. He walks with a walker. He looks his age. But once he was a handsome twenty-year-old member of the SS who volunteered for work at Auschwitz and was thus part of the human machine that murdered about 300,000 people in May, June, and July of 1944. (Even though he worked at the camp from 1942 to 1945, the indictment specifically references his work during those three months, during which time 137 trainloads of deported Hungarian Jews arrived at the camp, because these were the specific months regarding which viable witnesses were available to testify.) His specific job was only tangentially related to the murder of those 300,000 people, however: it was his assignment to collect the baggage from the arrival ramp after its owners were either sent to their deaths or processed as slave laborers. He was considered trustworthy, apparently, because part of his job involved personally removing any bank notes he found in the baggage. (He would then tally their sums and send the bills along to the SS office in Berlin, thus earning his grotesque nickname, “The Accountant of Auschwitz.”) And he was an enthusiastic participant as well: in a 2005 BBC documentary, he said openly that as a young man he believed that killing Jews, including children, was “the right thing to do.” So he was a willing executioner whose duties did not actually involve murdering anyone at all. Does that make him guilty or innocent? And if the former, then guilty of what exactly? That is the question I’d like to write about this week.
It’s a complicated question that goes far beyond the simple question of what role in someone’s murder an individual actually has to take to be indicted as that person’s murderer. Forty-six states, including New York, have felony murder rules, for example, that hold individuals who participate in a felony liable for any deaths that occur in the course of the commission of the crime. That rule is hardly applicable in Oskar Gröning’s case—the deaths of those who died in the camps was hardly a function of the Nazis’ wish to steal from them—but it illustrates the concept of liability going far beyond the actual trigger-puller to those “merely” constructing the context in which an innocent’s death took place. The defendant himself, speaking clearly and in easily-understandable German, framed the question as well as any could. “It is beyond question that I am morally complicit,” he said unambiguously as he addressed the court. And then he went on to say that he was prepared not merely to acknowledge his moral guilt but to do so before the victims “with regret and with humility.” He asked for forgiveness as well. And then, turning to Judge Franz Kompisch, he admitted his lack of legal expertise in the matter. “As concerns guilt before the law,” he said almost humbly, “that will have to be your job to decide.”
Well, doesn’t that complicate things! How simple it would be to condemn the unrepentant Nazi, the monster who after all these years still cannot understand how he can have done wrong by following his superiors’ orders, how he can possibly have been expected to know that it was wrong to murder children when the Führer said otherwise. That would be a true no-brainer. But here is a man who openly admits his guilt, who did not limit himself to the language of tangential complicity when speaking of himself in court but who spoke instead of actual moral responsibility. Clearly, he knows what he did was wrong. Does that make his prosecution unnecessary? On the one hand, if we routinely assert that ignorance of the law is no excuse for wrongdoing, then certainly knowledge that one did wrong also shouldn’t be! On the other, we are talking about a young man not old enough in 1942 even to buy a beer at a bar today in New York State who was party to monstrous crimes more than seventy years in the past? Is it reasonable to pursue him? Is it just? Or, given his age and his willingness to confess his guilt plainly and unambiguously, is it pointless or excessive to do so? You will find people vehemently arguing in both those directions on the editorial pages of the world’s newspapers and, with far less abandon, in the blogosphere. Nor is it obvious what the punishment should be if he is found guilty. Any sentence to prison at all would in effect be a life sentence. It’s easy enough to play the Javert in a case like this, but is that what we really think should happen…not to faceless murderers who aren’t actually on trial but to Oskar Gröning himself, the nonagenarian who actually is?
If I could address the court, I would deliver a sermon in two parts. First, I would argue that finding the accused not guilty despite his willing participation in mass murder would be not only be an insult to the Nazis’ victims but also a true perversion of justice. Nor does it seem important to me that the accused personally did not actually kill anyone with his bare hands because he was part of a team that as an aggregate of well-disciplined and well-organized co-workers was fully responsible for what they did in that place. But then, having made the case for conviction, I would move on to argue against incarceration as the man’s punishment. John Demjanjuk, who was convicted of being complicit in the murder of just one-tenth the number of victims in Gröning’s case, was sentenced to five years’ imprisonment. But what would be the point of sentencing a ninety-three-year-old to fifty years in prison? In my opinion, the man—frail but fully lucid and easy to understand when he speaks—should be sentenced to a life sentence to be served in the high schools of Germany. He should be obliged to spend a full five days of every week he has left telling his story, describing the ramp and the selections he witnessed, describing as best he can what he saw…and explaining how in a handful of years he personally moved on from being an innocent child in the German equivalent of middle school to the kind of young man who willingly volunteered for service in hell. He should be obliged to write his own story too, providing in his own words a lesson for future generations about how quickly—how unbelievably quickly—after losing one’s moral compass one can find oneself murdering babies, secure in the fantasy that one is behaving morally and patriotically.
By being sentenced to spend his remaining years bearing witness to what he himself saw and experienced, perhaps some good could come from this trial that comes more than half a century too late for “real” justice. Oskar Gröning has already won. He lived out his life in peace and calm. He married, became the father of two sons. He became an avid stamp collector. Barred from the banking industry because of his membership in the SS, he became instead a manager at a glass factory. He had a good middle-class life in a peaceful Germany city and lived, as the world now knows, into advanced old age. Nothing that can now happen can change any of that. But some good can come from his conviction if now, as the very last perpetrators pass from the scene, one of them were to serve as a living icon of the power of repentance not to undo the past or make innocent the guilty, but to inspire others to understand that, in the end, the boundary line between saint and sinner is narrow, not broad. And that to step across it requires nothing more complex than the simple willingness to harden one’s heart, to look away from the light…and to believe that one is too little important for one’s deeds to be of any real consequence. If the court is curious, that’s what I think should happen next.