In January 1945, Soviet forces liberated the survivors of Auschwitz, one of Nazi Germany’s most infamous concentration camps. 70 years later, 93 year old Oskar Gröning, who worked as a bookkeeper in the camp, is standing trial for aiding 300.000 cases of murder committed in Auschwitz. The trial is the first outcome of a recent campaign of investigations sparked in 2011 by a judgment of the District Court of Munich in the Demjanjuk-case. In this judgment, the Court had re-interpreted the concept of aiding in the context of concentration camps. In doing so, it effectively lowered the burden of proof for the prosecution compared to similar cases in the past. The outcome of the Gröning-case will indicate whether or not other courts are going to follow this precedent.
The Holocaust in the judicature of post-war Germany
The Nuremberg Trials, in which prominent leaders of Nazi Germany were tried by an international military tribunal, left behind a broad legacy, and they are considered by many as the birth hour of International Criminal Law. To say that the domestic prosecution of Nazi crimes in post-war Germany fell short of the success of the Tribunal, would be an understatement: Taking Auschwitz as an example, only about 50 of the 6500 SS-members who served in the camp from 1940-1945 have been convicted in German domestic courts.
This shortfall of justice has several reasons, most of them of a political nature. But there is also a rather technical, legal aspect of the matter: At least in part, the unwillingness of prosecutors to bring these cases to court was caused by a very strict interpretation of the concept of aiding by criminal courts in the mid-1960s.
Section 27 of the German Criminal Code defines “aiding” as “intentionally assisting another in the intentional commission of an unlawful act”. In the context of concentration camps, the crucial question is what exactly constitutes the “unlawful act”: Each killing of a prisoner? Each order of a superior and all killings carried out accordingly? Or the operation of the concentration camp as a whole?
In the 1965 Mulka et al.-case (known as the “Auschwitz-Trial”), the District Court of Frankfurt took a narrow stance on the issue. According to the Court, each “act of extermination by which a group of people was killed” constituted an “unlawful act” under section 27. In the horrendous context of Auschwitz, this referred to the operation of gas chambers that were used to murder one group of persons at a time. The Court thus placed a rather heavy burden on the prosecution: It needed to prove that an accused had been personally involved in the killing of a particular group of prisoners on a particular date.
Accused were acquitted if there remained a doubt as to whether they had been on sick leave or arrived late for duty that day. They could also not be convicted if it was possible that they had merely stood by and watched their comrades do the work.
At the same time, the Courts also narrowed down the circle of potential aiders considerably. The Supreme Court, confirming the District Court’s judgment on appeal in 1969, stated that doctors whose duty it had been to attend to the guards of a camp could not be convicted as aiders, because they had not been directly involved in the killings as such. This meant that a vast majority of camp staff was excluded from criminal responsibility: Only a small fraction of the personnel had direct contact with the prisoners, most of them worked in the vast infrastructure of the camps that were designed like industrial complexes.
As a result, prosecutors, faced with such high standards of evidence, largely refrained from bringing any more cases to Court, even though they were in possession of lists with the names of thousands of former camp staff members. This did not change until the early 2010s, when the Demjanjuk-case suggested a change of paradigms.
Demjanjuk – a paradigm change
In 2011, the District Court of Munich convicted Iwan Mykolajowytsch Demjanjuk of aiding the murder of 28.060 prisoners in Sobibor concentration camp. The Ukraine-born Demjanjuk had been a member of the so-called “Trawniki-men”, Eastern European collaborators trained by the German police to guard POW- and concentration camps. The exact details of Demjanjuks activities in Sobibor remained unclear throughout the proceedings. This did however not prevent the Court from finding him criminally responsible, simply based on evidence that he had been a member of the camp guards.
In his final pleading, victims counsel suggested to regard the operation of the camp as a whole as one single “unlawful act” under section 27. The Court did not explicitly adopt this proposal. However, it still regarded the “death machinery” of Sobibor in its entirety as the relevant reference point for the criminal responsibility of the accused. This meant that unlike Courts in the past, it did not need to rely on single instances to convict Demjanjuk of aiding murder. According to its re-interpretation of section 27, every man or woman that had served the camps infrastructure qualified, in principle, as aider for any killings carried out during their time of service.
Painting the criminal responsibility of the accused with this rather broad brush reminds the observer of the doctrine of “Joint Criminal Responsibility”. This concept, originating from common law, was first used by the UN ad hoc-Tribunals in the 1990s in the context of crimes committed in the Rwandan and Yugoslavian wars.
The Gröning-case
The Demjanjuk-judgment encouraged prosecutors to consult their databases and start new investigations. Among the few suspects that could still be tracked down after all these years was Oskar Gröning. In fact, he was well-known even to the public, for in 2005 Gröning had given an extensive interview to the BBC, in which he had spoken about his service in Auschwitz. In the interview, Gröning admitted that he had sorted and counted the currencies taken from arriving prisoners, sent them to Berlin and guarded the belongings of arrivals until they were sorted. He also stated that he had been aware of the extermination process of the camp and had even witnessed the killing of a baby by an SS officer. In September 2014, the public prosecution office of Hannover submitted the indictment to the District Court of Lüneburg. The main proceedings began on April 21 2015.
Judging from these publicly available sources, and from a perspective prior to the gathering of evidence in the trial, the Gröning-case seems to differ in several points from the Demjanjuk-case. While Sobibor had been built for the sole purpose of “exterminating” its prisoners, this was not entirely the case for Auschwitz. At least in part, prisoners were also used as slave labourers. Furthermore, the position of a bookkeeper might arguably be considered as one step further away from the killings of prisoners than a guard. Thus, finding Gröning responsible as aider might require the Court to expand the scope of section 27 even further, bringing it even closer to the concept of Joint Criminal Responsibility.
Is the Gröning-case of relevance today?
Justice delayed is justice denied. This sentiment holds true to the failure of the post-war German justice system to hold the perpetrators of the Holocaust criminally responsible. Whatever the outcome of the recent investigations will be, charging aged men barely fit to stand trial with crimes committed 70 years ago will not repair the omissions of the past. However, the re-interpretation of section 27 will also be of relevance for contemporary and future proceedings with regard to war crimes and crimes against humanity before German courts. Germany is a member of the Rome Statute, and its domestic courts have been empowered to adjudicate international crimes according to the universality principle. Several cases dealing with the Rwandan Genocide in the 1990s are pending, one of them recently ended with a conviction. Furthermore, domestic jurisprudence forms the foundation of what is considered to be general principles of international law, which are of relevance for international criminal tribunals.
A judgment in the Gröning-case is expected for late July.