Friday, April 24, 2015

An Old Man On Trial

The Auschwitz Death Camp, M Zacharz, sharing authorized, full citation below in credits.

Greetings All:

As I write this, a trial is ongoing in Germany.  A 93-year-old man is facing charges of accessory to murder.  If convicted, he is facing 15 years in prison, assuredly a life sentence.

This is not a typical trial.  The fact the defendant is so old makes it unique.  The circumstances of his crime even more so.  The defendant, Oskar Groening, is accused of being complicit in the murder of approximately 300,000 Jews, primarily Hungarian, at the notorious death camp, Auschwitz.

The facts are not in dispute.  During World War II, Groening volunteered to join the Schutzstaffel, or SS.  Although originally assigned a desk job, he was later sent to Auschwitz.  There he was part of the bureaucracy of murder.  He is not charged with personally killing anyone, or even ordering such deaths.  Instead, his guilt is inferred, based on his actions and complicit support of the Nazi "Final Solution." 

I have tried to find a copy of Groening's indictment, without success.  The basic concept is that by his presence at Auschwitz, his role, however mundane and passive, is enough to convict him of a war crime.  This from an NPR story:  "Prosecutor Jens Lehmann read out the indictment today against Groening, saying: 'Through his job, the defendant supported the machinery of death.'" 

One of Groening's jobs at Auschwitz was to collect money and other valuables from the condemned.  There were audible gasps in the courtroom when he said (to why he did this), "They (the Jews) did not need it anymore."  (Or words to this effect.)

His trial began a few days ago.  In his opening statement, Groening said the following:  “It is beyond question that I am morally complicit.  This moral guilt I acknowledge here, before the victims, with regret and humility.”  Then he said, "As concerns guilt before the law, you must decide."  (Please see The New York Times citation below.)

This is not a new legal theory, although it's most recent attention came from the trials of John Demjanjuk from the 1980s.  Demjanjuk was first accused of being a particularly sadistic Nazi, "Ivan The Terrible."  Later, he was absolved of that accusation, yet still convicted of being a guard at Sobibor, an extermination camp.  In the later case, his presence at such an infamous place was enough (in the eyes of the German court) to warrant guilt.  (For the record, Demjanjuk was appealing this conviction when he died.)  However, this theory has been used before, as far back as shortly after World War II.

I learned about it in Professor Tomaz Jardin's execellent book, The Mauthausen Trial.  I discovered it in a bookstore in Charlottesville, Virginia in 2012.  If you would like to learn more about war crimes trials, punishments and the behind-the-scenes activity, I highly recommend it.  When I saw the cover of a condemned Nazi about to be hanged, I knew I had to read it.  Here's a photo of it.
Cover, The Mauthausen Trial by Professor Tomaz Jardim, permission granted to use this image.

In the book, Jardim lays out how this trial came about and how the U.S. was able to obtain complete convictions of all the defendants.  Most were hung.  The prosecution's case was straight-forward:  All the Mauthausen defendants knew what Mauthausen's purpose was and supported this endeavor by their actions.  Knowledge plus support equals guilt.  This was, I believe, the first time this idea was applied in a war crimes trial.  

There is no doubt that those tried and convicted at Mauthausen were guilty as sin of perpetrating the crimes of the Third Reich.  Still, Jardim raises some important and less than convenient questions about the procedural aspects of that trial.  I am not saying those on trial at Mauthausen did not get a fair trial.  However, the due process safeguards in place today are far more robust today.  One only has to look at Dzhokhar Tsarnaev, the Boston Marathon bomber, trial to see the difference.  Again, I strongly encourage you to check out this book if you have even a passing interest in this part of history and/or military justice.

Getting back to Oskar Groening and his trial, I am glad it is happening.  He appears to be competent to stand trial and seems well-represented.  The fact he's an old man has no sway with me.  There is no statute of limitations on genocide.  And we are talking about genocide, mass murder on a barley-comprehensibly scale.  Groening was there, he's admitted as much.  He was also clearly on the side of the killers, another admission.  

So let's ignore for the moment the old man on trial.  Instead, let's focus on who Groening was during the war, during the killing.  Here's a photo of him from that time.

Gröning, Museum Auschwitz-Birkenau/Museum, AP re-post, fair use/public domain claimed.

In this photo, Groening looks like what he was at the time, a young man.  With the glasses, he looks almost scholarly.  However, that disappears as soon has you get to his neck and the SS symbol.  Then, it's clear the only thing he was studying was the Nazi hate regime, a neophyte apprenticing at the Nazi school of death.

I have many reasons to be following this story.  One of them is my legal background.  I am curious as to what is the burden of proof, the elements necessary to convict, and if there are the equivalent of our jury instructions, to aid the judges in determining guilt.  It may come to pass that Mr. Groening will convince the judges (or perhaps better put the prosecution will fail to prove) that just being there is not enough to convict.  If so, then should not everyone who wore that uniform be subject to the same fate?  Whatever is the outcome, I hope this trial is closely studied for use in future war crime trials.  Unfortunately, there will be others in the future.

There are a few other issues I want to touch on before I conclude this blog post.  First, Groening's testimony is important as perhaps the last first-hand testimony of someone who had first-hand knowledge of the crimes of the Holocaust.  I believe those who deny the Holocaust are awaiting the time when there are no more witnesses.  Then, they can tell their lies that it never happened, or not to the extent claimed.  Groening tells otherwise.  He is a credible witness and that matters.  After all, he was there and wearing the uniform of the killers.

Then, there is the matter of the survivors.  I read about two survivors, both named Eva.  Eva Fahidi cannot forgive Groening.  Eva Kor can, and did.  I have a link to both stories.  In the case of Ms. Kor, it is an amazing act of forgiveness.  It is in the last source if you'd like to read the whole story.

This trial is ultimately, in my opinion, being held for both Evas, and all the surviors.  This trial is to make Oskar Groening face his crimes and his accusers.  This is to make him stand and confront the evil of the past and his role in it.  

As this old man helped to court everyday with dignity, even kindness, I hope he recalls with detail (and guilt) what happened to those thousands of Jews he watched escorted to another place those many years ago.  A place as far removed from a place of justice as one soul can be.

לעולם לא ישכח

Never forget.

Be well my friends,


Opening photo:

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