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.
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