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.

Closing argument of Attorney at Law Thomas Walther – July 7th, 2015

Your Honor!

The prosecution has given an appropriate account of what was established as the facts of the trial.

I will merely add a few remarks to the prosecution’s elaboration.

The main focus of my final statement today will be something different. I will speak about the significance of this proceeding for the co-plaintiffs we are representing – the significance of a proceeding that is taking place 71 years after their next of kin were murdered.

71 years ago, in the early morning of 1 July 1944, 18-year-old Eva Pusztai – who is 89 years of age today and a co-plaintiff in this proceeding –, then a naïve girl of sheltered upbringing in Debrecen, was thrust into hell at the ramp of Gröning’s place of employment, Auschwitz-Birkenau.

On 16 May the “Hungarian Action” had begun in Birkenau.

The court and all participants to the proceeding have a first-hand impression of what we can accomplish here in this proceeding between 16 May 2015 and today – and in the coming days until 11 July 2015. Within exactly the same time span 71 years ago, 427,000 Hungarian Jews were transported to Auschwitz, of whom 300,000 were murdered immediately upon their arrival.

Among these murder victims were the families of our clients.

Being horrified does not help here. Neither does commiseration.

Together with my colleague Cornelius Nestler I represent 51 co-plaintiffs. With many of them I had long conversations and interviews in the year preceding this trial. Many were unable to travel to Lüneburg due to their age. It is for this reason that I am entitled to say the following in the first-person voice of my clients, and in their words:

We who are survivors of Auschwitz have the right to lament, and for our murdered families, we bear the duty to lament.

We lament suffering and loss, we lament our lonesomeness, we lament the most cruel of killing, we lament the million-fold absence of a kaddish at the deathbeds of our murdered families whose voices were silenced in Auschwitz. We lament time, which does not heal any wounds but instead burns them into our souls ever more deeply. We lament the cries within ourselves that we are suppressing even today to be able to pass for “normal people”.

And, day by day, we feel and suffer the recollection of our tears cried and uncried.

Now that decades have passed, we have become experienced in witnessing death, as we are seeing our own generations of survivors cross the threshold into death more and more often. It was only very late in our lives that we had to learn to sit shiwa as a rite of bidding our dead farewell – as the generations preceding us were scattered into all winds, rivers and swamps with the ashes of Auschwitz, entirely lacking the presence of our mourning. Our parents were not able to teach us a Jewish funeral rite.

And once WE are no more, WHO will remember?

Will the world preserve the ability to remember, or will collective forgetting prevail one day?

All our laments live in us. This Auschwitz death is part of our lives.

Only through our lawyers did we learn that in our ever-present lament we can also speak to this German court in the criminal proceeding against Oskar Gröning and that we will be heard with our pain and our laments.

We were thus granted the opportunity to bear witness as co-plaintiffs.

In the many conversations with our lawyers we found out and understood that you, Mr. Gröning, on the one hand were no different from the masses of all the SS men in Auschwitz who perfectly organized and undertook death for us Jews; but that on the other hand you let glimpse a sort of transformation in the decades following the war. We heard about your interviews with BBC and the SPIEGEL, and we registered that you have tried engage critically with your participation in the Holocaust. We know that your family was involved.

We, the survivors and children of victims, we thought that you could be much “better” than all the accused in the earlier Nazi trials. We hoped that you, Mr. Gröning, would comprehend our laments in a way that only one of the perpetrators can. It is you alone who encounters us this closely in our families’ hour of death. Speaking with our lawyers, we had raised hopes that in the best case a type of dialogue might unfold between us and you.

As the co-plaintiffs’ legal counsel, I, Thomas Walther, am telling you, Mr. Gröning:

The hopes of the co-plaintiffs were nourished by the knowledge that you made public the fact of your presence in Auschwitz as a result of your own decision, without at the time being accused in a criminal proceeding. You spoke publicly about your tasks on the ramp of Birkenau, where you came so close to the co-plaintiffs and their families 71 years ago. You openly addressed how you came to be a compliant and obedient Nazi and SS man. Without any pressure on the part of the justice system – which, until 2 years ago, remained inactive –, you publicly voiced your present-day disapproval and condemnation of what happened in Auschwitz. And at 94 years of age you are facing up to this proceeding in the role of the accused – and are thereby facing up to your responsibility as it will finally be established by this court.

For this, you deserve respect.

And yet, I as well as the co-plaintiffs remain greatly disappointed.

The disappointment begins with an inability on the part of the accused Oskar Gröning – an inability he shares with all of Auschwitz’s perpetrators and helpers: He is unable to use the word MURDER for the crimes of Auschwitz – the word MURDER in all of its unambiguousness that rules out any doubt. Instead, he hides behind the SS’ structures of command. It was the catastrophic consequence of this unconditional devotion to “the command” that has led to a relinquishment of all and any personal responsibility.

This is more than evident in the additional statement that Gröning had presented by his lawyers. He speaks explicitly of the “convenience of obedience, which did not allow for contradictions”, and he says that he did not have anything to do with the murders immediately.

Is the man Gröning not responsible for his own, personal obedience, in any case?

And he has his lawyers present further: He merely contributed to “the camp of Auschwitz operating effectively”. What a phrase!

He does not make a connection between himself and the murdering.

But it is exactly these instances of operating effectively in the mutual participation of all the cogs in the wheel, in the machinery of murder, that turns these “participants” into those who make mass murder possible – as prototypes, by way of their “functional aiding and abetting murder”.

From the beginning, Gröning transferred his individual GUILT to the area of MORALITY. And along with my co-plaintiffs, I recognize that for Gröning the responsibility for murdering their families is tied to the question of morality, thereby limiting his individual guilt. The result of this is humiliation – the humiliation borne from presenting life as relative. A Jewish human life is not subject to a determination of the right to live by way of moral reasoning.

Such an act of limiting individual guilt regarding the deaths of Jews harbors immense dangers in the present, in our world. Modern justifications for practiced anti-Semitism are mostly of moral nature. The moral values or norms of particular groups are interlaced with indignation, resentment or envy, and they meet in modern anti-Judaism.

In this sense, I wish to emphasize the deep concern on the part of the Jewish co-plaintiffs. For generations, they have all reacted with alarm when guilt regarding the deaths of Jews is to be weighed using the scales of morality.

Behind the complex societal and political deformation that was a trailblazer for the barbaric slaughter of innocent human beings, the individual SELF of Oskar Gröning was able to hide undetected from the start. Now that these deformations are removed, it is unbearable for the co-plaintiffs to denominate participation in murder in Auschwitz as an “immoral act”, in the worst case.

On the two days of this trial on which Mr. Gröning chose to speak and in all his interviews of a decade ago, one event is described again and again using similar words. Anyone who has, generally and comprehensively, devoted attention to the murder of the Jews in Eastern Europe after 1941 will agree: It was common practice to grab the small bodies of babies or infants by the feet and smash them to death against a wall, a tree, or a truck’s bumper bar.

Mr. Gröning, then, repeatedly describes the murder of this one baby whose little head was smashed in this manner when he was doing service on the ramp for the first time.

In a peculiar way, Gröning describes his own indignation about what he saw, but turns it into his own, morally motivated desire to leave Auschwitz. At the same time, he declares against the backdrop of his attitudes of the time that he generally agreed with the extermination of the Jews – including the children – as “enemies of the people”.

The repeated flexibility of “morality” in the life of the accused is apparent. A baby’s mere shooting would not have given cause for a desire for relocation. Only the battering did.

Around the end of last year, at an international school in Toronto, I spoke about Auschwitz with students who were but 11 or 12. Their parents are from all over the world. I was surprised. These children had already read Anne Frank’s diary in class, and they had had a number of lessons on the Holocaust. When all of the children’s questions had been answered, a girl raised her hand once more and hesitatingly asked me a question:

“Do you know” – she asked – “what they did to the children?”

The child was evidently thinking of herself.

Almost all our clients have spoken about their siblings’ murder. About the murder of children like Gilike, Eva Pusztai’s sister, or Evike, half sister to Judith and Elaine Kalman, or of Gershon and Reuven, the brothers of Irene Weiss.

What does the murder of our clients’ defenseless siblings, of these children, signify for those who were sentenced to live?

In one word: Tears. Tears that never run dry. Tears, again and again, even after 71 years. The dead siblings dig themselves into the consciousness of the living. Years and decades freeze. Never again will a leaf fall off a tree in front of these children’s eyes. No sunray will be a harbinger of a new morning.

After the end of the war, the surviving siblings who are themselves still children recognize with horror a German society that had legalized the mass murder of children according to an official morality. – Only 11% of Jewish children survived the Holocaust. These few were “old people” already when they were “children”, and their most serious of post-traumatic disorders were to accompany them for their whole lives, until today. To put it concretely: To accompany them all the way into this courtroom!

All the children in the world know the fear of being deserted. All the fathers and mothers in the world know the tears and raised arms because the parents are not to part from the children’s side. All of the world’s cultures in the history of humanity have respected this primal yearning. – And in Auschwitz the reverse side of this yearning, of a child’s fear of desertion, was instrumentalized in a diabolic way. Babies, infants, and children remained with their mothers. This was able to prevent panics, and joint transport could be feigned – all the way to waiting together in front of the gas chamber, as we have seen in the photograph of Reuven and Gershon with their mother. From the start, the continued care for the children was certain death for all mothers.

Only a place like Auschwitz, under the attentive eyes of the SS men, could bring to death also the children and babies in an unending stream of those condemned to die – leaving the surviving siblings with absolute emptiness, with an infernal nothing. There were no more children – from one’s own world. Those had been lost forever, within minutes on the ramp.

And our clients? – For decades they remain alone with their questions regarding the responsibility of all those without whom Hitler, Himmler, Göring and Heydrich never could have managed the systematic murder of the Jews of Europe.

Now, anyone who wants to believe that terror recedes with old age, that the souls of those who were children in Auschwitz in 1944 can find peace – anyone who wants to believe this is profoundly mistaken. And it is not only survivors who, in the spectrum of the Holocaust, are tormented by their nightmares even more once they reach old age – because the infirmities of age also play a role, and because the past often returns into the souls in an even more tormenting manner. The perpetrators and participants to the crimes fare quite similarly. Oskar Gröning knows this. – States of acute anxiety, during which Auschwitz enters into the present, are by no means rare. They are described by all the guardians, nurses and other persons who care for these people at old age.

And anyone who believes to have recognized stable personalities in these 14 testifying witnesses – persons so psychologically stable that they do not require any external support –, anyone who believes this is again mistaken. They may be perceived as such in the courtroom, because they have carefully tuned themselves to this day and even this hour, and because their legal counsels previously prepared them very cautiously and yet comprehensively for the entire proceeding. – All of them, over and over again, suffer through their incredibly dark hours in the whole gamut whose backdrop can be described in a phrase by Eichmann. The latter described his life’s work in the well-known Sassen interview: “I transported them to the slaughter.”

Within the year preceding the liberation in May 1945, Jewish children of happy families were transformed into the few survivors of the Hungarian Holocaust. They did not know anything about how to live a normal life. All on their own, without a soul to comfort them, they had to learn to survive survival.

The co-plaintiffs who had the opportunity to testify as witnesses before this court have described all the suffering and the loss. And in a mode of humility that is urgently required I remind myself again and again: Words alone are entirely unfit for filling with life the true experience of the hell of Auschwitz.

The true dimensions of the hell of Auschwitz live but in the hearts and souls of the survivors – of whom, according to the SS’ absolute will to dominate, not a single one was to survive Auschwitz.

Gröning has painted an image of duly “taking care” of the arriving transports with the cattle cars spilling over with Hungarian Jews – this image bears no resemblance to what actually happened to the people in these cars.

What concerns me, here, is not so much that the old man relapsed into the jargon of the time of the crime. While he corrects his first statement in this regard, he remains unable to find an appropriate personal word for that which for years he did not only experience first-hand, but which he fostered.

Only by way of example do I want to come back to the oft-invoked image of the baby battered to death, the image with which Gröning seeks to indicate that he himself is affected, a personal involvement cloaked as a humane emotion. Because – as Gröning has stated – this baby could also have been killed another way, for example by gunshot.

How does this isolated image from the initial days of Gröning’s service in Auschwitz – an image that he himself has painted –, how does it go with his emotionless account of the transports during the ‘Hungarian Action’, when 5 to 6 trains arrived every day, each carrying approximately 3,000 Jews? How does it go with his phrase of “duly taking care of” these transports?

I am convinced that with the testimonies of the 14 witnesses we have heard, with the elaborations of expert witness Dr. Hördler on the allegedly so unobstructed “taking care of” the 437,000 Hungarian Jews, it has become very clear what really happened.

Death had long found its way into the cattle cars when their doors were yanked open by the labor squads under the command and supervision of, among others, Unterscharführer Gröning.

This raises one of the many questions that Gröning has thus far avoided answering. What did the dead and the dying from the Hungary transports elicit in the accused himself when they were thrown on the ramp right in front of his feet? Or does he say: “They did not exist”?

Was he already so used to death and annihilation at this time that the only encounter to remain memorable and worth mentioning was this one early encounter with a single infant?

Or – this explanation suggests itself – is the baby nothing more than a metaphor? – A metaphor not so much due to memory, but part of the construct of later justification within his own family and social environment, when he had to present himself to his own sons and others in a way that was to allow for at least a certain amount of respect on their behalf?

These paths towards the self-conceptions of this generation of parents are familiar to anyone who – like me – is old enough to remember these times. In the earliest years, fists were banged on tables – among them Gröning’s – and any family member was banned from using the word MURDER for personal actions in Auschwitz. This time was followed by the great silence of the years of the economic miracle.

Had he refrained from banging his own fist on the table, Gröning would have been able to internalize the presumed immunity from punishment only much later. This was possible only once the interrogation by Frankfurt Chief Prosecutor Klein had remained without consequences in 1978.

Long before, in the 1960s, he and his generation were confronted with the past in their own families, when the Auschwitz Trial and the atmosphere of the era forced questions to the father onto the minds of the university-student sons.

Mr. Gröning, you, too, were faced with this problem.

It was of no advantage to you, then, not to have shown an interest in Frankfurt’s Auschwitz Trial yourself.

In this situation, the battered infant from your initial days of service was a suitable bridge for a return to a residue of moral principles and for consequently describing a number of alleged requests for relocation to the front line. The facts of the trial as established here will show that there were no such requests for relocation.

This circumstance cannot be altered either by the alleged personnel file that, according to Gröning, disappeared in an unresolved manner when in the custody of the Frankfurt prosecution. And yet, these requests for relocation were of eminent importance for his personal exculpation. Only like this was it possible to somewhat save face in the personal social environment of the 1960s.

Not to mention his promotion to Unterscharführer – i.e. Sergeant – that Gröning himself stylized as an SS criterion for exclusion from service on the ramp. We remember the photographs from the Auschwitz album in which historian Dr. Hördler showed us numerous SS men on the ramp sporting the SS Unterführer badge.

Gröning, with his additional statement, responds to this proof by way of expert witness: What he initially presented as an order – “No Unterführer on the ramp” – he now downgrades to a mere personal conclusion. This correction of course is fatally reminiscent of the idea of the “disappeared personnel file”. The latter, too, only surfaced “verbally” when serious doubts of the existence of any requests of relocation were expressed.

The accused felt the breath of death in the stench of thousands of humans burned each day and night during the ‘Hungarian Action’ in Auschwitz, and he knew: While the war lasts – the war that had cost his brother’s life in November 1942 –, this place in the shadow of the death of hundreds of thousands of Jews is the safest place for him, personally.

And yet, from the 1960s until today he has claimed: “I wanted to leave Auschwitz for the front line”, where he would have encountered death not as the stench of burned Jews but as the many-thousand-fold death of German soldiers, and where death would have lain in ambush for him, personally.

I want to explain to you, Mr. Gröning, why this “lie about the requests for relocation” is understood by my clients as an especially evident instance of flight from your personal responsibility.

The smashed little head of a Jewish baby serves as a gateway to your “mock indignation” – in order to demonstrate your compassion-slash-grace and your subjective sensation of cruelty.

A mere year and a half after the isolated indignation concerning the one battered baby, you, Mr. Gröning, then regard the 437,000 Jews from Hungary as nothing more than a “large number” within a short period of time with a “heavier workload”. You regard them as those Jews who, upon arrival, had to be duly “taken care of” and went from the ramp to death, absolutely clueless and without any complication whatsoever.

In this time of the ‘Hungarian Action’ you do not notice a single baby to be thrown onto the ramp, already dead from the cattle car ride, or desiccated to a corpse in the arm of a mother, or meeting the last hours of life whimpering and feeble from hunger and thirst. “Duly” is your decisive term for the ‘Hungarian Action’.

Your additional statement does not contain anything concrete on the ‘Hungarian Action’, either, even though you explicitly name the witnesses’ testimonies on the ‘Hungarian Action’ as the reason for your renewed declaration.

In this courtroom, the victims and the perpetrator have come together.

Evidently, our clients who testified as witnesses have not come alone – and in saying this, I do not mean their children that were by their sides. Our clients were here also in the company of their murdered parents, siblings, grandparents, aunts, uncles, and nieces. In many cases, there were 50 or 60 or more that came here, to Lüneburg, with a single witness in the torturous sensation of the forcible loss of entire families.

But neither were you, Mr. Gröning, here on your own.

You were joined here by all those members of your family who have already perished. According to your own words, you encounter them in your dreams. You have told medical examiner Dr. Friedrich about these dreams. But you are also in the spiritual company of the subsequent generations, of the sons, grandchildren and great-grandchildren. Infants and babies like the one on the ramp will also be among them. At times, in a dream, the ramp scenes of which you cannot rid yourself may interlink with the faces of your own family. Reinterpretation as well as erratic changes of identity are part of the “nature of dreaming”.

The co-plaintiffs know by now that in late 1943 the accused married his older brother Gerhard’s fiancée Irmgard, following Gerhard’s death near Stalingrad on 20 November 1942. It is apparent and comprehensible that the accused now wanted to spare his own life – to be able to encounter his first-born son, delivered in August 1944, as more than a “hero killed in action for Führer and fatherland”. When my clients met the accused on the ramp, his wife Irmgard in Verden was six months pregnant and was not to be widowed, after her previous fiancé had already been killed in action two years earlier. – The question cannot be ignored: Had Oskar Gröning not also had to promise to his older brother Gerhard “to take care of Irmgard – in case he would not return from the battlefield”?

When you willingly remained in Auschwitz, Mr. Gröning, what was at issue for you was your life, were the lives of your wife and your first-born child – was your family! And yet by way of the baby metaphor you are describing your participation in the murder of all the families of the assembled co-plaintiffs as something that was equally “forced onto you”, because the SS allegedly did not let you go to the battlefield. You are embellishing a comprehensible selfish desire to survive with a moral cloak of an alleged state of being personally touched.

The abuse of certain modalities of killing Jews as a protective shield for your alleged state of being touched is one of the cruelties that you, Mr. Gröning, should have renounced in your encounter with the witnesses in this proceeding. It is not enough when you say that “you did not think the suffering of the others through to the end”.

You had a chance to do this in this proceeding, but to date you have not used it!

As far as Mr. Gröning, in his additional statement, calls the post of Auschwitz unsuited to realizing his family planning of “having a child fast”, identifying front line service as the better alternative to this end – as far as this goes, the facts point to the contrary, looking at the eldest son’s date of birth in 1944.

The co-plaintiffs are aware of the real relationship between entirely unconditional devotion to “the command” and its most catastrophic of consequences. It is the relinquishment of all and any personal responsibility.

Mr. Gröning says that this “cannot be comprehended by today’s standards”. If he means mass murder when he says “monstrosities” and only avoids using this word with reference to his own person, then this was equally incomprehensible already by the standards of “then”. It is “incomprehensible” to participate for years in the effectively operating death factory of Auschwitz. By all human standards, it has always been incomprehensible.

“To the outside”, Mr. Gröning thus preserves for himself the image of the SS man who on his inside was “decent”, who never wanted to stay in Auschwitz, who instead and courageously wanted to be part of the real war, on the front line.

Before I conclude, I need to speak about “fear” and its transformations.

The co-plaintiffs’ fears regarding a journey to a trial in Germany were great. Even the most elaborate of information in the preceding conversations was not sufficient to completely eliminate these fears. For many co-plaintiffs who did not make the trip it was therefore not only old age, health issues or frailness that mandated the decision not to travel to Lüneburg. Irene Weiss described her fears by saying that the accused could stir a fear of death in her even today, were he in the uniform of the SS. Comparable fears were so overwhelming in far more than just a few of the co-plaintiffs – so overwhelming that they were able to keep the acute and new nightmares at bay only by their definitive decision not to travel here.

A latent fear accompanied the co-plaintiffs on their way to Lüneburg. Some had initially not wanted to come here at all. But those who were able to build sufficient trust and who embarked on the journey, have undergone a very strong and intense transformation – all of the co-plaintiffs that came, without an exception. In them, an entirely new image of Germany has evolved. Under the impression of this image, the latent fear has disappeared or at least diminished greatly.

The co-plaintiffs noticed the respect with which they were treated. In court, they witnessed the search for justice – contrasting their fear of old German self-righteousness. Officers in German uniforms – those of the police and the judiciary – were recognized by the co-plaintiffs without any hesitation as those who in this proceeding will protect them from any threat. The German public – with its repeated spontaneous and positive attention in public spaces – and representatives of the media, the mayor of Lüneburg: they have all contributed to this strong transformation of latent fear into trust.

To an extent that was never expected, the court has validated and augmented all the positive impressions that the present witnesses had the chance to experience in the context of the proceeding. What I termed a “redeeming and healing effect” in what was initially not more than an optimistic prognosis has become the reality of this proceeding for the co-plaintiffs.

“I am surprised and I am happy … to be alive”,

a co-plaintiff wrote to us in a concluding description of her experience in Lüneburg.

The dialogue

Those co-plaintiffs who came for the trial session on 1 July – all of them co-plaintiffs who were here for the second time, with the exception of Andrew Sternberg – took the trip also in the hope that the accused would find the right words for his apology: his second statement had been announced beforehand.

They were disappointed. Mr. Gröning does open by declaring that it is his great concern to express himself once again after the testimonies of the survivors and the victims’ next of kin. But then he says very abstractly that the testimonies had made him clearly aware once again that most people had been annihilated. – He knew this beforehand. That is not new. But in this moment he does not say anything that regards the murdered families of the witnesses. And it is only these fates that were new to him.

Instead he says that he “had no idea about the horrendous conditions in the transports” and says verbatim: “That was a great shock to me.”

If you will pardon my saying so: Did Mr. Gröning not see very directly and very immediately all that which we have seen in the photographs of the Auschwitz album! “No idea”? – 3,000 Jews in three days and nights from Hungary to Auschwitz; always 80 to 100 to a cattle car. “No idea”? What kinds of travelers were they, those people who were thrown onto the ramp? – “No idea” about the horrendous conditions of the journey?

Mr. Gröning had the chance to comment on this with greater credibility.

But he has preferred to present his first statement mainly as what I want to call – “old wine in new skins”. By and large, this was a repetition of the old story of requests for relocation and of only three instances of ramp service during the ‘Hungarian Action’. All of this does not become any more convincing by being repeated or annotated.

The additional statement also contains a request to be “excused”. When one of our clients heard this word and could not yet clearly understand the context, a feeling of “positive surprise” arose in her. But then she had to learn: This was but an apology for having relapsed into the Auschwitz SS jargon in his first statement – it was not a personal request for forgiveness of his actions. The disappointment was great.

Other co-plaintiffs, in contrast, would not have accepted an “I apologize for my actions”, either – as long as this apology did not involve an open and transparent description of the actual participation in the crime. Avowals of humility and regret are little more than hollow words when the speaker does not say clearly what he is avowing.

At least, however, Mr. Gröning has made an attempt to react to the witnesses’ testimonies. He has recognized, in any case, that the co-plaintiffs have to suffer from the experiences of Auschwitz to this day.

Mr. Gröning has the privilege of knowledge on the question what really happened. Unlike the survivors, in whose lives the events on the ramp were singular and brief, Mr. Gröning has perennial knowledge of what has occurred. He is still able to speak to this. He continues to have the opportunity and the liberty to describe the unspeakable crimes in concrete terms – if only he steps out of his own dream world of trivialization and of his taciturnity in remembering mass murder. The co-plaintiffs are not giving up hope that the accused will finally liberate his own soul in his “Last Word” and open up about what happened and what he saw on the ramp and in Birkenau during the ‘Hungarian Action’. The accused shares responsibility for the co-plaintiffs’ lifelong suffering. He cannot absolve them from this suffering, no matter what his words. But he can offer them a bit of help in handling this suffering in the context of this criminal proceeding.

For this, it is not yet too late.