Closing argument of Prof. Dr. Cornelius Nestler – July 8th, 2015

At the end of any criminal trial, three questions have to be answered: What has the accused done; how is his behavior to be assessed legally; what sentence is to be imposed?

But in this particular criminal proceeding, two additional questions are in need of answering. One is: Why now – why still, after all this time? What point is there in conducting a trial against a 94-year-old, 71 years after his crimes, and pronouncing him guilty? Thomas Walther has answered this question for our clients.

His closing statement shows: This is not a proceeding whose legitimacy is measured by formal criteria only, as would be the case in any “normal” criminal proceeding – measured by whether there are sufficient grounds for the suspicion that there has been an offense that, within our legal order, mandates an indictment and a trial. Instead, this proceeding receives its actual legitimacy from the co-plaintiffs: Regardless of what German society and its justice system are legally required to do – conducting this proceeding was necessary to offer the victims some satisfaction, to provide justice for the victims, finally and all too late; and to give the co-plaintiffs a forum to speak out on behalf of the victims.

In what follows, I will pursue the second question, a question that was also touched upon again and again in this trial, but a question which most of all determines the public perception of this proceeding: Why now – why only now? Why has it taken so long to indict Mr. Gröning?

The professional judges, the prosecutors and some of the co-plaintiffs’ counsels in this trial are familiar with the general line of argument that my reply will follow – and in particular they are familiar with the relevant documents to be found in the case file. And I am aware that each participant in this proceeding must consider whether his words and actions are justified in light of the limited stamina of the defendant. But when and where, if not here and today, at the end of this trial, is the right moment and is the right place to attempt an answer – an answer to how it is possible that a member of the SS who participated in the murder of the Jews in Auschwitz is on trial only 70 years later. And we are speaking about a case in which law enforcement authorities have known those things about the accused that are now the subject of the indictment for quite some time – since his first testimony as an accused in 1978 at the latest. How could it happen that this accused is on trial only now, more than three decades later? Our clients have asked us this question again and again, and I am convinced that the accused himself is also curious to hear the answer.

The history of the non-prosecution of this accused, like that of thousands of other members of the SS who participated in mass murder in Auschwitz, can be divided into four phases:

The first phase is the period of time when there was no systematic investigation of the mass murder of Auschwitz on the part of the German post-war judiciary. This inaction was an expression of the new Federal Republic’s politics towards the past (I am expressly using this term instead of Vergangenheitsbewältigung, i.e. coming to terms with the past); this inaction was an expression of the post-war society’s refusal to face up to its past and thereby also its responsibility for the Shoa. Only with the Ulm Einsatzgruppen Trial of 1958 did it become evident both from the perspective of criminal justice organization and politically that the existing practice of waiting for the coincidence of a witness to come forward with the charge that a certain individual had participated in the state-organized mass murder of the Jews was insufficient. The Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes is created (to be termed “Ludwigsburg” in what follows, for the town in which this office is based) – an institution to systematically initiate investigations, also against members of the SS who had been active in the extermination camps, including Auschwitz.

The subsequent second phase is that of the large Frankfurt Auschwitz Trial, which ends with the judgment on the appeals by the 2nd Panel of the Federal Court of Justice in 1969. To our knowledge, Oskar Gröning has not yet appeared on the horizon of the law enforcement authorities at this time. And yet, this criminal trial is of outstanding significance for the subsequent history of the criminal prosecution of SS members who had participated in the murder of the European Jews. Here, a legal course was set that is of consequence even today.

The indictment of Mulka and others before the Frankfurt District Court did not only concern the industrial-style extermination of Jews in Auschwitz-Birkenau. The concept behind the prosecution was precisely also to document all other forms of everyday murder in Auschwitz: by way of the choice of the persons to be accused in the trial and the crimes with which they were to be charged (for instance: selection for gassing among those camp inmates that were no longer fit to work; mass shootings; murder for medical purposes; arbitrary individual crimes). The concept that Fritz Bauer, the driving force behind this prosecution, had devised consisted in presenting a kaleidoscope of Auschwitz. At the same time, however, it entailed presenting a legal assessment of the murders in Auschwitz as a monumental photograph of a mass crime organized in the shape of a pyramid and by division of labor – that is, as a single offense. This concept, and in particular its practical consequence that any member of the camp personnel was a participant in this offense (i.e., in the killing of all human beings who had been murdered in the camp) merely and solely as a result of having been part of the camp personnel, was a concept the Frankfurt District Court did not want to follow. On the contrary, the verdict disassembles the industrially-organized mass murder into the smallest of individual pieces – it atomizes this mass murder, as Fritz Bauer termed it. This course of action on the part of the court was not only historically false, but it only worked because the assessments were in fact outright absurd and, as a consequence, legally wrong.

The verdict thereby becomes a reflection of the worldview of Chief Justice Hofmeyer who had initially resisted a trial with 22 accused, instead preferring to conduct separate proceedings against each one of the accused. This perspective on Auschwitz is the perspective of a former Wehrmacht staff judge, i.e. of a man serving in a position that, by way of the draconian severity of the death sentences, bolstered the Nazi system until its demise. This perspective – one may speculate given the judge’s past – endeavors to establish the largest possible distance from any systemic entanglement in Nazi crimes, therefore focusing exclusively on the individual and his actions, wherever possible.

The example of Mulka, the primary defendant and deputy commander of Auschwitz-Birkenau, makes the implications of this narrow perspective more than evident. Mulka was responsible also and in particular for the effective operation of the extermination activities in the gas chambers – this is described extensively in the indictment and even in the facts established by the court in its written verdict. But in the eyes of the court, on its own, this role of Mulka’s is not sufficient. The court searches for a concrete individual offense and finds two such offenses where Mulka forwarded two mission orders following Reich Security Head Office transport announcements, one where he acted as chief supervisor on the ramp, and one where he ordered improvements to the gas chamber seals – at the end of the trial, there is a conviction for these four cases only. One can only wonder what the court would have decided had it not been able to detect these four acts when establishing the facts of the trial. Would the deputy commander of Auschwitz have been acquitted? And how does the court arrive at this assessment that Fritz Bauer has appropriately called an elucidation of details in slow motion (Juristenzeitung 1967, 627)? The reason is that the court only ever understands a single act of extermination to constitute an offense. In the case of the murders in connection with the Reich Security Head Office transports, this is the murder of those people who arrived in a single transport. But if in the course of the Shoa, the murder of 6 million Jews, there was a complex of actions for which the criteria of an offense in the sense of a natural unit of action apply – those being uniform planning, spatial delimitation, standardized procedure – then that is the extermination of those Jews that were selected on the ramp and then murdered in the gas chambers. The decisive statements with which the District Court circumvents this consequence are the following: “The individual acts of extermination took place in each case by way of specific exercises of will on the part of the SS members scheduled for ramp service.” And – “the SS men concerned with (these operations) (had to) decide anew in each case” to undertake these specific exercises of will, i.e. their actions. This is grotesque: Every morning upon waking up or in each instance of receiving the order for ramp service, the men of the likes of the accused Gröning are to have decided anew to participate? How are we to imagine this decision of will to be taken anew each day – today I will do it again, but tomorrow I might not? This is absurd – to put it mildly. According to everything we know about the perpetrators of Auschwitz, they decided to participate at the outset of their activities in Auschwitz – they did not decide anew each day.

The 2nd Panel of the Federal Court of Justice upheld this verdict of 1965 in its judgment on the appeals presented four years later. But any legal practitioner who is not blind to the practical-political circumstances of this decision must have known and must know: Had the panel followed Bauer’s interpretation and the appeal presented by the Frankfurt prosecutor’s office – and had it, for instance, interpreted Mulka’s actions as aiding and abetting a single offense only – then the panel would have had to reverse the judgment, as the District Court had convicted Mulka for aiding and abetting four offenses. And there was a series of other decisions, among them some taken by the 2nd panel, to show that this decision of 1969 had not set in stone as a precedent the definition of an offense. Instead, there was certainly room for differentiation and alternative perspectives – of the kind that in the end also became the foundation for the indictment in this criminal proceeding.

The third phase is the period of time after the judgment on the appeal of the large Frankfurt Auschwitz verdict (in what follows, I will call this “the Auschwitz verdict” for simplicity’s sake) by the 2nd panel of the Federal Court of Justice. With its choice of the 22 accused, this trial’s indictment addressed but a snippet of the on-going Frankfurt prosecutor’s office’s investigations, which encompassed many more suspects. However, the Auschwitz verdict and its affirmation by the Federal Court of Justice set the course for handling the entirety of this investigation: One now had to be able to prove that a suspect had directly participated in an act of killing, which had to be narrowed down both with respect to time and place. We can presume, since no further information is available, that investigations against a whole series of SS members were not even initiated or in any case closed because it was impossible to present such proof.

But there were also proceedings in which proof of participation in a crime did exist, even according to the standards of the Auschwitz verdict. One was the proceeding against the members of the so-called motor pool (which is not part of the case files in this proceeding, Prosecution at Frankfurt District Court, 4 Js 1031/16 and 4 Js 798, 64). The accused had described in their interrogations that they had frequently transported persons who could not walk from the ramp to the gas chambers by truck. Even by the standards of the Auschwitz verdict, this was sufficient proof of participation in a concrete offense. But here, too, the standards set by the Auschwitz verdict resonated, just in a different way. The prosecution in this trial filed a motion to close the proceedings because the guilt was minor. I am quoting from the reasons given for closing the proceedings: “Assessing in total what happened in the concentration camp of Auschwitz, the members of the motor pool appear as small “underlings”. (…) Their contribution to the criminal act was far smaller than that of a selecting SS officer or an SS member immediately involved in the procedure.” The prosecution then looks at the sentences that the Frankfurt District Court had imposed. “In the case of SS doctor Frank who decided over life and death of the arriving persons on the ramp in Auschwitz-Birkenau, a sentence of five years of prison was determined – for the selection of a minimum of 1,000 persons for death by gas; and in the case of the former member of the political department, Dylewski, for his immediate participation in these selections a prison sentence of three and a half years.” These sentences were unjustifiably light. They became possible as the consequence of a jurisprudence that presented Hitler, Himmler and others as the main perpetrators, but most generally regarded everyone else who – as it was phrased – had not made Hitler’s criminal will his own to have been a mere aide. Like this, even Mulka, the adjutant, was turned into an aide; even the doctor who made the decision of life and death during selection – a mere aide. The head of the Frankfurt prosecution before the District Court, Dr. Rahn, draws the conclusion with his motion to the District Court to close the proceeding: “The sentences of guilt and punishment against this circle of persons have set standards. The guilt of the members of the motor pool can be measured against these convictions. Doing so, the latter’s guilt appears minor.”

It is only years later, in 1977, that the proceedings against 62 members of the so-called ‘administration of prisoner property’ is taken up, among them Oskar Gröning. He is interrogated as an accused on 5 January 1978 in Nienburg/Weser. This proceeding ends – as we have already discussed here in this trial – in 1985, when Chief Prosecutor Klein closes the proceeding. And he does so without presenting any reason: “Due to an overly full case schedule, the reasons for closing the proceedings are to be elaborated at a later time.” However, this never happened.

We therefore can only speculate what the reasons for closing this proceeding may have been. Minor guilt, as in the case of the motor pool? Had the accused, too, been nothing but an “underling”? After all, he had been SS Unterscharführer from early 1944 onwards, i.e. a sergeant. And one of the accused was Theodor Krätzer, Obersturmführer, head of the so-called ‘administration of prisoner property’ – had he, too, been nothing but an “underling”?

The same Chief Prosecutor Klein had previously found an alternative way of closing a proceeding – in April 1982, in another part of the proceedings that the Frankfurt prosecutor’s office conducted with respect to Auschwitz. In this proceeding against a Ludwig Armbrüster (not to be confused with Michael Armbrüster from the ‘administration of prisoner property’ proceedings) and others, members of various ‘Wachsturmbann’ companies were investigated. Their task had been to form a firm and closed circle of armed guards around the ramp in order to – I am quoting from the decision – “prevent escape attempts on the part of the arriving persons when they disembark and to bar unauthorized persons from access to the ramp.” Prosecutor Klein does not regard this ramp service as a type of conduct worthy of a criminal indictment and closes the proceeding, giving the following reasons: “Already the causality of their actions (i.e. the actions of the accused) for the success of the act of extermination is doubtful. Yes, the chain of posts around the ramp (…) was also to prevent inmates from escaping. (However,) it is not known that there ever would have been escape attempts from the ramp on the part of inmates.” Moreover, the entire planning and execution of the extermination had not centered on violence, but on deceiving the Jews, Klein elaborates. One could therefore not assume “that – had the chain of posts not stood around the ramp – the arriving deported Jews, or some of these persons, would have run into the fields upon disembarking into the strange environment.” Now – I will return later to the question whether this description of the function of the SS guards is accurate. In any case, prosecutor Klein has an additional argument: “Regardless, a larger number of armed SS guards, the officers of the political department and other SS members were immediately doing service on the ramp and already would have made an escape of this type seem unlikely.” These other SS members were, among others, the members of the so-called ‘administration of prisoner property’, and among them, Oskar Gröning.

Now, if the Wachsturmbann was not required for the extermination activities, then at least the SS men on the ramp were? No, they were not, and now prosecutor Klein presents his central argument, and one understands why the proceeding against the accused in the ‘administration of prisoner property’ complex was equally closed three years later. Prosecutor Klein divides the deported Jews into two groups. On the one hand there were the persons unfit for escape: the old, the ill, and the children with their mothers. And on the other hand, there were those fit for escape. But the latter – this being the first step of the argument – of course wanted to “remain with their families”, meaning that even the fit for escape “were not willing to escape in the beginning”. And – quote – “the following thought also has to be added, however. It is to be assumed that those who would have been fit and willing to escape were initially directed into the camp as fit for labor.”

So – to sum up the logic of these remarks: Those persons who were murdered were not able to and had no desire to escape. And the others, those that were fit to escape, were not murdered under the participation of the ramp service at all – they were directed into the camp as fit for labor.

Prosecutor Klein seems to have an inkling that there might be a problem with this reasoning after all – where it pertains to those who would have been fit for escape. Because many of these persons did – quote – “then perish in the camp from exhaustion, epidemics or as a result of selection”. But this approach is nipped in the bud – “It can no longer be established which and how many of the persons who arrived on the days on which the accused had served (on the ramp) later lost their lives in the camp.”

If we take prosecutor Klein by the words of these reasons for closing the proceeding in 1982, we can guess as to the reasons that he delayed “due to an overly full case schedule” and never put into words hence.

For the Frankfurt prosecutor’s office, then, the case of the former members of the ‘administration of prisoner property’, and consequently the Gröning case, would have been settled in 1985. And so it would have been, had not prosecutor Günther Feld, now active as a legal counsel for co-plaintiffs in our trial, indicted in September 1990 the very same Mr. Kühnemann with whom the accused Gröning had shared quarters in Auschwitz. Point 5 of this indictment issued by the Cologne prosecutor’s office reads: “The task of the accused as overseer of the removal unit consisted in supervising, first at the old and later at the new “ramp” (Birkenau), those inmates who had to unload the baggage from the cattle car transports of the Jews and then bring the baggage to the camps where the effects were stored. In doing so, he helped (…) safeguard the smooth progression of the industrially-organized mass killing of Jewish persons; and in particular with a view to the arrival of the next transports, respectively, whose trains were at times already waiting in the area of the Auschwitz camp.” This point of the indictment which – admitted by the Duisburg District Court – would probably have led to a conviction of Kühnemann had the latter not become unfit to stand trial is interesting for several reasons:

Naturally, prosecutor Feld, as well as the judges at the Duisburg District Court, was familiar with the 2nd panel’s 1969 judgment on the Auschwitz verdict. But Feld and the Duisburg judges evidently do not in the least let this prevent them from issuing and admitting an indictment – and why not: The supervision of the clearing unit on the ramp does constitute a – if one wants to use this term at all – concrete instance of contributing to a criminal offense. One merely has to assess this contribution appropriately in the context of the “smooth progression of the industrially-organized mass killing”. It is possible to indict, after all, despite the 2nd panel’s 1969 decision.

And now, as a result of the diverging legal opinion on behalf of the Cologne prosecutor’s office, the Frankfurt prosecutor’s office, in November 1990, was obliged to address once again the ‘administration of prisoner property’ proceeding – having closed the same proceeding without presenting any reasons in 1985. But Frankfurt readdressed it only for the amount of time it takes to write a memo and mail a case file: The prosecutor’s office now “discovers” that the accused whose place of residence had provided the grounds for the Frankfurt prosecutor’s office to have local jurisdiction over this issue – that this accused had passed away in 1979. So for six years, until closing the proceeding in 1985, Frankfurt had no longer had jurisdiction? In any case – the proceeding against Theodor Krätzer is reopened only to transfer it immediately to the prosecutor’s office of Kempten, Allgäu, which has local jurisdiction for this accused’s place of residence. Kempten, in turn, passes the proceeding on to the prosecutor’s office at the Munich I District Court due to the latter’s special jurisdiction over National Socialist crimes. What was decided there we do not know – we do know, though, that Theodor Krätzer seems not to have been indicted. When in 2014 in the context of this proceeding, my colleague Thomas Walther tried to learn what had happened to the Munich proceeding against Krätzer, the local prosecutor’s office denied Mr. Walther access to the case file to, in their words, respect Krätzer’s “postmortal privacy rights”.

And of course one would also like to know what happened to the proceedings against the other 61 accused in the context of the ‘administration of prisoner property’ – were they, too, also transferred to the respective prosecutor’s offices with local jurisdiction, or did the Frankfurt prosecutor’s office simply sweep the other accused under the rug?

At the Frankfurt prosecutor’s office, one will have assumed that the ‘administration of prisoner property’ issue was finally off the table after the transfer of the Krätzer proceeding to the Kempten prosecutor’s office in the winter of 1990. Yet, 15 years later, in 2005, Mr. Gröning gives the SPIEGEL an interview. He obviously does not consider there to be any criminal justice risk in also addressing his activities on the ramp. And why should he? If one analyzes the interrogations of witnesses and accused in the 1970s and 1980s, one will find that the former members of the ‘administration of prisoner property’ were aware that participation in the selection on the ramp was assessed to be participation in murder. But – and their testimonies are consistent in this respect – they did not have anything to do with the selection; at most they know that something of the like existed. The Kühnemann proceeding, then, had as its subject the supervision of the clearing unit on the ramp. On what this means, witness Struss, formerly a justice at the Duisburg District Court in the Kühnemann proceeding, has given us a vivid presentation – this means that what was now at issue was to have as little as possible to do with the supervision of the clearing unit. “Only” guarding the luggage, as Gröning reports to the SPIEGEL, appeared to be unproblematic, from a legal point of view.

In Ludwigsburg, the perspective is not as differentiated; there, someone sends the SPIEGEL article to the Frankfurt prosecutor’s office with the query whether Gröning’s assertions might provide grounds for the suspicion of aiding and abetting murder. Now-responsible prosecutor Galm, a long-time member of Chief Prosecutor Klein’s staff, looks into the case file and recognizes that Mr. Gröning told the SPIEGEL nothing beyond what the prosecution already knows from his interrogation as an accused in 1978 – and the prosecution had already closed this proceeding in 1985, albeit without giving any reason. Mr. Galm does not contemplate the indictment against Kühnemann issued by the Cologne prosecutor’s office – and presumably he does not even have the indictment in mind, as all the relevant case files were mailed to Kempten in 1990. However, prosecutor Galm obviously does remember prosecutor Klein’s motion to close the proceedings from 1982 – this being the one from the trial against the former members of the Wachsturmbann. From it, Galm copies the relevant paragraphs for his decision. There is a small problem in this, though: Not only are the facts of the case against Gröning different from the facts of the case against the former members of the Wachsturmbann in 1982. Moreover, when addressing the Wachsturmbann’s chain of posts that were further removed from the ramp, prosecutor Klein had precisely argued – you will remember – that it was already the presence of the SS members on the ramp – that is: men like Gröning – who in presenting a threat stifled any thought of escape in the arriving persons. Now Galm simply turns the argument on its head: “the purpose of his (Oskar Gröning’s) mission was not to prevent inmates from escaping (…). That was the task of the chain of posts set up by the Wachsturmbann.” This is clever: The one group, namely the Wachsturmbann, had the task of preventing escapes, but they were – as Klein had argued – expendable. The other group, men like Gröning, who were on the ramp were able to prevent escape attempts but, as Galm argued, this was not their purpose, after all. Ultimately, then, it is not too important to prosecutor Galm in 2005 what was or was not the purpose of the men on the ramp. “By the way”, he begins the next part of his reasoning, there is no causality in any case. And now prosecutor Galm copies verbatim prosecutor Klein’s motion to close the proceedings in 1982, thereby repeating the interpretation that those persons who had been selected for labor in the camp had not immediately been murdered, whereas the others had been murdered right away but had not wanted or been able to escape.

This reasoning is really noteworthy. First of all, it is very obviously wrong: Without the threat that the SS men on the ramp posed in this division of labor – and the witnesses in this trial have also and repeatedly attested to this – the concrete progression of the extermination would not have been possible. This only begins with the forced participation of the Kapos, the foremen, which was absolutely necessary for that progression – and the activities of the Kapos on the ramp are unthinkable without the armed SS members standing in the back.

Second, prosecutor Galm bases his legal reasoning on “sine qua non”, a rule of causation well known amongst lawyers. I want to take this rule literally for a moment and imagine what would have been without the SS at Auschwitz. I will spare us the answer.

It is downright fantastic that a prosecutor in 2005 rejects the causality of aiding and abetting with the rule of “conditio sine qua non.” Every second-semester student of law is taught the sentence with which Fischer’s standard commentary on the German Criminal Code introduces the section “Causality of aiding and abetting”: “According to the courts’ settled case law, the act of aiding and abetting does not need to be causal for the offense in the sense of conditio sine qua non” – some form of facilitation is sufficient. A prosecutor’s office that, contrary to settled case law, refers to academic doctrine to reject interpreting a set of actions as a case of aiding and abetting murder on the ramp in Auschwitz – this is unique manner of proceeding. Just to illustrate the standards for aiding and abetting in other cases, I will cast a brief glance at a trial conducted around the same time before the Hamburg Higher Regional Court. With respect to this trial, the Federal Court of Justice establishes in November 2006 that the accused Motassadeq aided and abetted murder in the attacks of September 11, 2001 insofar as he – among other things – transferred money into the account of Mohammed Atta’s landlord to cover up the latter’s presence in the U.S. before the attacks.

Transfer of rent payments – that is aiding and abetting the attacks of September 11th. And the SS’ ramp service in Auschwitz-Birkenau is not aiding and abetting? What, then, was the function of the SS men on the ramp? Perhaps a guard of honor for the persons on their way towards gruesome death in the gas chambers? This egregious reasoning on the part of prosecutor Galm never would have found its way to the public, and the trial here at the Knights’ Academy of Lüneburg never would have taken place had the history of the prosecution of Nazi crimes not taken an entirely surprising turn in a totally different context.

In September 2006, Bavarian local court judge Thomas Walther has himself transferred to Ludwigsburg. In his colleagues’ and superiors’ purely informal relaying of institutional knowledge that is customary at his new office, he learns that there is a specific precondition for initiating proceedings of National Socialist crimes: namely that there is evidence of immediate participation in a concrete act of killing – a concrete singular offense. This is not only frustrating – because there are still suspects among SS members who served in extermination camps, but there is practically never said “concrete singular offense”. What is more, he has to resort to the helpless reply “That’s the way it is here in Germany” when he is criticized by Eli Rosenbaum, head of the Office of Special Investigations in Washington, DC – an office that prosecutes both systematically and successfully those men and women in the U.S. that participated in National Socialist crimes. Walther does not content himself with this state of affairs. He googles and finds, rather coincidentally, the lengthy Matia verdict by the Ohio Northern District Court, which in 2002 had declared the denaturalization of John Demjanjuk lawful. According to this verdict, the evidence is unambiguous, Demjanjuk had been a guard in Sobibor. But nothing more is known, and in particular there is no proof of a so-called concrete singular offense. Walther now comes up with what he personally considers to be a new and innovative theory: the extermination camp as a factory in which every employee shares the responsibility for mass murder.

This initiative on Walther’s part, as well as the tireless work he subsequently undertakes together with his colleague Kirsten Goetze, do not only lead to the ultimate conviction of Demjanjuk by the Munich II District Court; what is more, they also spark the initiation of new investigations against a series of former SS members. Looking back, the series of events is outright absurd: Walther chances upon a verdict in Google, which the director of his office was presented with in 2003, but a few years earlier, during a visit to Washington, DC, and which Walther’s boss deemed irrelevant – the key phrase being “no concrete offense”. And to bring about a change in the practice of his office and, subsequently, also of the justice system, Walther first had to think up what he considered an entirely new theory – only to discover three years later, in the trial against Demjanjuk and to his great surprise, that this theory had already been settled case law of the courts in the 1960s where the extermination camps of the SS were concerned. In this sense, the Hagen District Court in its 1966 decision, for instance, speaks of the “functional participation” of all members of the SS camp squad in mass murder in Sobibor. And the Federal Court of Justice does not only affirm this decision, but in 1964 establishes in its judgment on participation in the special command of the Chelmno extermination camp: The accused “aided and abetted the killing of the victims (…) simply by way of their membership in the special command. The specific type of tasks that they (…) executed is therefore (…) of no significance.”

The director of the Central Office in Ludwigsburg, Chief Prosecutor Schrimm wrote a brief at the beginning of the proceedings of this trial (Sonderheft I, Bl. 22). It reads: “In the context of the decision of the Munich II District Court of 12 May 2011 on the subject of Demjanjuk, it appears advisable from the perspective of this office to examine to what extent GRÖNING had become part of the extermination machinery, even without there being individual proof of him committing a concrete offense.”

So this is the way it was – that is why for decades there were no investigations against former SS members active in Auschwitz and at other sites of extermination – because the Munich II District Court established a new legal position in 2011. Mr. Schrimm has claimed this ever since the Demjanjuk trial whenever the opportunity arose, and the media have since followed him in their ignorance of the actual circumstances. But this depiction is plain wrong! The proceeding against Demjanjuk merely initiated a change in the practice of Ludwigsburg as well as of the judiciary. The law has always been the same. There is the murder article, 211 StGB, in the version created by the National Socialists in 1941, and there are the rules on aiding and abetting. And the concrete acts of Mr. Gröning had been established in his interrogation as a defendant in 1978 at the latest: the administration of money and ramp duty. After all, prosecutor Galm had rejected reopening the proceeding in 2005 not because it was impossible to prove that Gröning had committed a concrete offense – but because Galm denied the causality of these concrete actions with respect to the murder of the Jews.

What was legally problematic after the Federal Court of Justice’s 1969 judgment on the Auschwitz verdict, if anything, was the question whether or not the murder of the Jews from the Reichssicherheitshauptamt transports could be conflated into a single offense. And with respect to this question, in particular, the Munich II District Court in its Demjanjuk decision does not venture onto new paths, but is in line with the Federal Court decision of 1969: In its interpretation, there is not one offense, but 16 offenses for 16 transports.

And yet, the proceeding against Demjanjuk marks the beginning of the fourth, the final phase of the prosecution of National Socialist crimes.

While the proceeding against Demjanjuk is still underway, Ludwigsburg takes action. In a first round with Kunz, a former Belzec guard, and Kalymon, Breyer, and Lipschis, suspects for whom the U.S. Office of Special Investigations delivers complete investigation packages, previously ignored for years by Ludwigsburg. Then the so-called 50er list of the former SS members of Auschwitz who are still alive, among them the accused. What Thomas Walther and I have been witnessing for years is a fiasco. Proceedings of this kind only materialize where a willing, dedicated and fast-working prosecutor happens to encounter a willing court and where the accused is still fit to stand trial. Only by way of example: In the case of Lipschis there was a dedicated prosecutor, but the court was unwilling and mobilized all the old arguments, especially the difficult to prove isolated offense argument. The Frankfurt prosecutor’s office that initially had jurisdiction over the Gröning case writes a long memo, included in our case file, first listing all the difficult legal problems (the 2nd panel in 1969 on the Auschwitz verdict and the definition of an offense); and then, the memo elaborates, there are also the great difficulties that an extensive investigation entails. Finally and luckily, the proceeding ends up with prosecutor Dr. Lehmann in Hannover and with the court here in Lüneburg. The matter of the definition of an offense is simple, in the end – one only has to read the indictment. And the factual questions of this trial took but a few days – factoring out the important testimonies of the co-plaintiffs. Here, a dedicated prosecutor met a court that feels committed to the law and is not guided by a desire to avoid conducting a complicated trial.

One is tempted to pronounce a great thank-you to this proceeding’s prosecutor and court. But that would be fundamentally wrong – it is outright forbidden to thank a prosecutor’s office and a court of law for having done what is their duty: to investigate and, if there is sufficient suspicion of an offense having been committed, to indict and to open proceedings. For this, there must not be thanks, even though emotions of this kind do arise when looking at the decades-long failure of justice and also at the developments of the past few years. However, gratitude is owed to you, Dr. Lehmann, and to the court and in particular to its presiding judge, Mr. Kompisch, for your treatment of the co-plaintiffs and their legal counsels. Because the motion for being admitted as a co-plaintiff can only be filed if one knows of which offense the defendant is accused: One needs to know the place, the time, and the act. Prosecutors who do not provide this information until after issuing the indictment can thwart any potential co-plaintiff. Dr. Lehmann did the contrary – without his transparency in dealing with us co-plaintiff counsels it would have been as good as impossible to prepare our co-plaintiffs for this proceeding in time. For this you deserve to be thanked assertively. And the court and its presiding judge deserve a big word of thanks for how you treated our clients – in an understanding, friendly, caring manner. Not only did you alleviate our clients’ strong fears – you have earned their greatest respect.

I am coming to a close: On the first page of the indictment, read here at the beginning of the trial, prosecutor Dr. Lehmann summarizes – his wording being very reserved – what Auschwitz was: an extermination camp not only for those who were killed immediately upon their arrival, but also for the other inmates. They all were doomed for “extermination by labor”, as the key phrase goes, and inhumane conditions. Anyone who was not transferred to another camp survived “the camp of Auschwitz only due to (his or her) liberation or escape.” Here it is summed up: The camp of Auschwitz – from 1942 onwards at the latest – as a mass extermination camp for all Jews. Dr. Lehmann was aware that to remain consistent with this reasoning one would have had to indict the accused for aiding and abetting all murders that took place in Auschwitz after his arrival in October 1941. However, the practical problems that could have arisen with such an indictment, particularly with regard to the old age of the accused and his ability to stand trial, were great. Dr. Lehmann therefore – I am quoting the indictment – “for the time being abstains from prosecution with regard to all acts of killing conducted outside of the ‘Hungarian Action’ proper, according to § 154 Abs. 1 Nr. 1 StPO.“ This decision was reasonable in the context of the trial – even though it factored out a large number of transports from other places, among them Greece, the Netherlands, France, and ghettos in Europe’s East, from which far more than 10,000 persons were murdered at the time of the ‘Hungarian Action’ and following exactly the same pattern. But the starting point of the indictment is important – aiding and abetting all murders that took place in Auschwitz in the period of time in which the accused was active in Auschwitz, thereby contributing to making possible the systematic mass murder that did not only take place in the gas chambers but that was the principle of all of Auschwitz. Between Fritz Bauer’s indictment and that of Dr. Lehmann, half a century has passed. This is how long it has taken for Fritz Bauer’s approach to once again become the starting point of a criminal proceeding. Bauer wrote: “The actions of any member of an extermination camp from his entry into the camp (…) to his departure” constitute an offense, “whatever he physically contributed to the administration of the camp and thereby to the ‘final solution’.”

The consequence of this statement is simple: Auschwitz is a place where no one should have participated. We do not know whether the accused Gröning already saw it this way at the time. And whether he submitted requests for relocation, as he claims, or whether he did not – in the end that is of no importance: Someone who submits requests for relocation but then even volunteers for ramp duty for his comrades, has not acted under duress, or even mistaken duress. But the story of the requests for relocation shows that the defendant Gröning, too, is today of the perception that he clearly expressed in his final statement: Auschwitz is a place where no one should have participated. Mr. Gröning did participate, and that is why he will be convicted for aiding and abetting mass murder.

Far too late, but not too late.