Verdict against Reinhold Hanning for accessory to murder in Auschwitz

Transcript of the oral arguments presented by the presiding judge of the chamber of the district court of Detmold on June 17th, 2016 

Introduction[1]

Mr. Hanning, you have been sentenced because you have been found guilty of accessory to murder. You worked at Auschwitz concentration camp for almost two and a half years in an important role and thus facilitated mass murder. You were aware that in Auschwitz, innocent people were killed every day in the gas chambers, were shot dead or perished from the horrid living conditions there, and you knew that your job as guard helped facilitate this mass extermination. You yourself assessed the situation correctly in your personal statement when you said that you joined a criminal organization. But you weren’t just a member of a criminal organization. Through your work at the concentration camp, you yourself partook in the crimes that were committed in Auschwitz.

Prior to this trial, many debated whether a 94-year-old should still be put on trial seventy years after the crimes of Auschwitz. Such an ethical question does not pose itself to a court of law. If the prosecution’s indictment raises sufficient suspicion that a crime was committed, and if there are no obstacles to the trial – such as unfitness to stand trial or a statute of limitations –proceedings must be opened, and the trial must be held. But even from a non-judicial perspective, all those who had the privilege of witnessing the joint plaintiffs’ statements in this trial can resoundingly affirm the question of whether such proceedings are necessary. This trial is the minimum a society can do to accord at least a little bit of justice to the countless victims of the Holocaust. Even 70 years after the crimes. Even when the defendant is 94 years old.

The legal provisions gave us an easy answer to the question whether these proceedings had to be conducted. The proceedings themselves, however, were all but easy. Not because the case was difficult to elucidate. Not because the court had to deal with to intricate legal issues. These are issues a court of law has to tackle on a daily basis. The challenge in this trial was that so many different objectives were at stake: To express the horrors of Auschwitz and the immeasurable suffering that happened there before a German court. To hear the truth about the mass extermination and an apology from one of the last surviving perpetrators. To commemorate the historic facts. To warn new generations about the dangers of persecuting human beings for political, religious or racial reasons. To make up for the failures and oversights of the state, the justice system and society, which all neglected to take action to address the injustice of the Holocaust for years – just to name a few.

Criminal proceedings simply cannot meet all these expectations. For a court of law only seeks to ascertain the defendant’s culpability under criminal law. The court must assess his or her individual culpability, no more and no less. In this case, the court’s specific task was to determine whether and during which time period the defendant was in Auschwitz and what he did there. In its greater historical context, the offence was a clearly defined historic event that did not require any further clarification. After determining the facts that were the subject of this trial, the next step was to ascertain whether the defendant’s activities in Auschwitz made him guilty of accessory to murder under criminal law. 

Why this trial came upon so late

According to article 27 StGB (German Penal Code), accessory is a person intentionally assisting another person in his or her intentionally committed illegal act. This element of offence was already included in the Reichsstrafgesetzbuch (Imperial Penal Code) and has been in effect in its current form since after the end of World War II.

Why then did it take over 70 years for the defendant to be tried? The answer to this question is as simple as it is disturbing: After the end of World War II, neither politics, nor the justice system, nor society were willing to deal with the injustice of the Holocaust. Instead, there was a climate of massive psychological repression. Everyone denied having known anything about the past crimes of National Socialism, let alone having been involved in them. Witness Wendel summed it up poignantly when he was asked whether he ever talked to family, friends or acquaintances about his time in Auschwitz: “Nobody wanted to talk about it.” Germans quickly began to view themselves as victims rather than as perpetrators, duped by National Socialist propaganda and their own blind obedience. As Germans were busy rebuilding and working what came to be known as the Economic Miracle, they felt they had no time for a self-critical reflection of the Holocaust and coming to terms with their past.

It took a profound transformation of politics and society, and with it, the insight that every link in the chain of command – from the political leadership, Hitler, Göring, Himmler and Heydrich in Berlin, all the way down to the guard in the concentration camp – was part of the machinery of destruction and thus contributed to the success of what was called the “final solution”. This change in the social mindset was doubtlessly far overdue, and was expressed in the verdict by the Landgericht (Regional Court) Munich in the Demjanjuk case of May 2011. Fortunately, the prosecuting bodies took this verdict as a signal to bring back and retry old cases. The verdict by the Landgericht Munich thus also paved the way for this trial. Late, very late, but just in time before the living memories of the Holocaust survivors become recorded memories.

Description of the crimes, Hanning was an accessory to

After Hitler’s rise to power, he and his party, the NSDAP, consistently pursued their goal of harnessing their racial ideology to exterminate ethnic or social minorities that they considered inferior – Sinti and Roma, people with disabilities, homosexuals, but above all, Jews. The latter were gradually marginalized from public, political and economic life. The Reichskristallnacht of November 9, 1938, kicked off a period of open terror against Jewish citizens and their expulsion from Germany. Jews were mistreated and killed, Jewish temples burnt to the ground, businesses and residences vandalized. A surge of arrests gripped the Jewish population. In the course of 1941, the so-called ‘politics of race’ reached its final, radical climax. Previously, the Jewish population had been forcefully relocated to poorly equipped ghettos with catastrophic sanitary conditions and a dire lack of bare essentials. This practice was now abandoned in favor of the so-called “final solution”. The National Socialist leadership was now pursuing a planned, ruthless extermination of all Jews in the German sphere of influence, fueled by ideological brainwashing and antisemitism of the utmost degree of moral corruption.

Auschwitz was the largest extermination camp. In Auschwitz, mass murder was conducted in an organized fashion and at an industrial scale. By 1945, at least 1.1 million people had been murdered at Auschwitz concentration and extermination camp; in the period between January 1943 and June 1944 alone, at least 170,000 men, women and children were killed by the perpetrators with poisoned gas, shot dead, or simply perished under the sheer living conditions.

The majority of those who were deported to Auschwitz were killed in the gas chamber immediately upon arrival in the cruelest and most surreptitious manner.

The very way to Auschwitz was a horrific ordeal. They traveled for several days, crammed into cattle cars with 80 or 90 other people, a bucket of water, another bucket as a toilet. Mr. Bill Glied gave us a graphic account of those inhumane conditions.

When the deportees finally arrived in Auschwitz, the utterly exhausted passengers were driven out of the cars before a backdrop so ominous that it would stifle any inkling of resistance: Uniformed SS-guards with rifles hollering: “Get out, quick”, ferociously barking dogs. Then they were selected. Men had to line up on the right side, women and children on the left. Families were torn apart, never to see each other again. Without mercy, without any regard for humanity, a flick of the wrist would decide the fate of every single one. Mrs. Irene Weiss viewed some of the photos documenting the selection process in Lily Meier’s album. One photograph shows her mother and her two little brothers moments before they were killed in the gas chamber. Everyone involved in the proceedings could sense what a horrific sight that was to her still today.

Yet the deportees still believed that they would be all right; they still thought Auschwitz was a work camp. Mr. Leon Schwarzbaum told us what his father said: “We’ll be all right. The Germans are decent people from the land of poets and philosophers.” This expectation was intentionally reinforced for a single purpose: To make the extermination go smoothly. Some of the prisoners were made to write postcards home reporting that they had safely arrived at the work camp and that they were doing well. Mr. Justin Sonder described this very vividly. The new arrivals were led to believe that their luggage was going to be delivered to them later. They were led to believe that they were about to take a shower. They were told to fold their clothes neatly so they would find them again afterwards. People entered the gas chamber without a clue. After the doors were barred from the outside, people were sent to their deaths defenselessly.

The active ingredient in Cyclone B, which was used in the gas chambers, is hydrocyanic acid. As expert Prof. Dr. Daldrup graphically described before this court, it first irritates the mouth, throat and eyes. This is followed by nausea, vomiting and extreme pressure in the head, which worsens with increasing concentration of the poison, shortness of breath, cardiac pain and cramps. Eventually the victim will lose consciousness and die from lack of oxygen. Until that point, the victims suffer horrific agony. What is worse, the symptoms first occurred in shorter persons who were closer to the spot where the gas entered the chamber. Parents watched their children die. Those who stood further away from the entry point had to watch the others’ torment while realizing that the same was about to happen to them, as well. Deadly fear would grip the chamber, people would panic and scream. It would take 20 to 30 minutes before their ordeal was over.

But death also awaited those who were not immediately murdered upon arrival in Auschwitz. The words on the main gate “Work Will Set You Free” could not have been any more perfidious, for these people stood no chance of survival, either. The only objective was to exploit their labor for as long as possible.

The deportees were forced to take off all their clothes, they were disinfected, all their hair was shorn, they were tattooed and given prison uniforms. The purpose of this disgusting practice, retold movingly by Mrs. Erna de Vries, was to strip them of their individuality and objectify them. Mrs. Hedy Bohm could not have described the result of this procedure more poignantly: Afterwards, she saw her reflection in a window pane and did not recognize herself.

When the prisoners anxiously enquired about their loved ones, they were given a dreadful response: People would point to the chimneys and the smoke that was continuously rising from them. They were told their families had gone through the chimney to heaven. Mr. Mordechai Eldar described this to us movingly. He said: “We wept and the older ones consoled us.”

Chronic malnutrition in the camp spelled death within just a few weeks. The camp fare, consisting only of Ersatz coffee, soup and bread, was utterly insufficient both in quality and quantity. This was exacerbated by poor hygiene, inadequate clothing and hard labor, and not least, by the prisoners’ vicious treatment at the hands of the concentration camp staff. The system of terror and arbitrariness in concentration camps was virtually unchecked and devoid of any compassion. The inmates, stripped of all rights, were continuously at the mercy of the SS guards and their brutal harassment. They were at the verge of death at any given moment. “The camp staff enjoyed our suffering” – this is how Mr. Benjamin Lesser summarized the SS guards’ unimaginable abuses.

Thousands died from hunger and exhaustion. Those who were too weak or too sick to work were selected and killed, either by phenol injections into the heart, or in the gas chamber. Mr. Justin Sonder explained that in Auschwitz, those who were still around after three or four months were considered the “elder” inmates. He himself survived seventeen selections. He poignantly described the dreadful fear he suffered every single time.

Starving another human being also qualifies as cruelty as a legal criterion of murder. Expert witness Dr. Karger convincingly explained how death by starvation means torture and agony for the victims. First, they suffer agonizing hunger that eclipses everything else. Then, they lose so much weight that their inner organs start wasting away. The weakened body starts developing painful infections. The whole time, the starving victims know that they are dying, which causes deep psychological trauma.

Hundreds of prisoners in Auschwitz were shot, among others in mass executions at what was called the Black Wall between Block 10 and 11. The Kapo of the barracks would take those who were to be shot, naked and barefoot, from Block 11 to the Black Wall. Most had witnessed killings of other inmates before and knew that they were about to meet the same fate. On their way from their bunker to the Black Wall, the victims would see traces of blood and the carelessly piled up bodies of those shot before them. The prisoners had to face the Black Wall and were killed with shots to the back of the neck from small caliber guns. That was cruel, too.

At least 1.1 million people were murdered in Auschwitz. This court assumes that at least 170,000 people were killed during the period in question for this trial. Expert witness Dr. Hördler explained to the court that from January 1943 until April 1944 alone, about 190,000 people were killed in the gas chambers immediately following their deportation. To this we must add the victims of what was called the Hungary operation, at least until completion of the ramp at Birkenau. Since, as expert witness Dr. Hördler explained before this court, the 3^rd Company was not on call to serve at the new ramp in Birkenau, the defendant is not to be charged for the murder of deportees who arrived there. Furthermore, more than 8,000 people died from hunger and disease during their imprisonment in the camp during the period in question: Weak or sick prisoners were killed by phenol injection into the heart, or in the gas chamber. And lastly, hundreds of people were shot at the Black Wall, as witness Detective Superintendent Cüsters explained.

Yet we cannot rule out that there were cases that do not qualify as murder. These cases, which are considered homicides, are subject to the statute of limitations. In addition, we must assume, based on the defendant’s irrefutable testimony, that he was absent from Auschwitz for some time during the period in question due to illness and for training. We can, however, attribute at least 170,000 deaths to him with certainty.

170,000 people, that is an unconceivable number. We owe gratitude to the joint plaintiffs who gave testimony in this trial for giving these countless victims a face and a voice. The joint plaintiffs have made it clear that there is a personal story behind each death, that each survivor’s suffering is unique. The joint plaintiffs lost their parents, siblings, grand-parents, aunts, uncles and cousins in Auschwitz – many of them are their family’s sole survivor.

The joint plaintiffs can find no joy in their survival. Their pain is for life. While most of the perpetrators returned to their ‘normal lives’ after World War II – as did our defendant – the victims of the Holocausts continue to suffer from the hell of Auschwitz to this day. In her memorable account, Mrs. Angela Orosz-Richt Bein told us that her mother was afraid of dogs and showers for the remainder of her life. As her mother grew older, her nightmares returned. She died on a January 28, desperately wanting to live to mark January 27, the day of her liberation.

The joint plaintiffs have illustrated the horrors of Auschwitz for us, events so indescribable in normal human terms that ultimately, they cannot be put in words at all. And it took a lot of strength for the joint plaintiffs to give their testimony – that was apparent to all of us. Old wounds were opened once more. Mrs. de Vries, Mrs. Bohm, Mr. Schwarzbaum, Mr. Glied: Your testimonials, as well as those of the other joint plaintiffs, were of immense importance. Not only in order to reach a verdict in this trial, but also to remind us of the past so that this genocide without precedent won’t ever happen again. None of us will ever forget the joint plaintiffs’ remarkable statements. We can only hope that you, Mr. Hanning, were also moved by the joint plaintiffs’ accounts.

Why the actions of Hanning constitute accessory to murder

The defendant grew up in a modest home. After finishing school, he initially worked at a factory. In the summer of 1940, he volunteered to join the Waffen-SS. Perhaps the defendant was motivated by the idea to be part of a strapping, uniformed organization, embark on a military career, be something better than a simple soldier of the Wehrmacht for which he was to be drafted. After training in Graz, he was first deployed in the occupied Netherlands and Northern France. After that, he participated in the Serbian and Russian campaigns, where he was severely wounded by shrapnel in September 1941.

When the defendant came to Auschwitz following his recovery, he likely did not know what Auschwitz was. He assumed – so he stated in his testimony – that it was a POW camp. Yet in reality, the whole compound in Auschwitz looked more like a factory – designed to kill at an industrial scale. About 7,000 – 8,000 men and women of the SS ran Auschwitz concentration camp – from the commandant, such as Rudolf Höß, to the lowly SS soldier. They worked a perfect machinery, one little wheel turning the other. And you, Mr. Hanning, were one of these little wheels.

You worked for the 3^rd Company in Auschwitz during the time period in question. This was proven beyond doubt in the main trial. The task of the 3^rd Company was to guard the main camp. This meant alternating between staffing the large guard chain during the day and the small guard chain during the night, as well as accompanying the outdoor brigades. In addition, the Company was on call at what was called the Old Jew Ramp until the new ramp in Birkenau was completed in mid-May of 1944.

The court believes that the defendant claimed never to have served at the ramp only to protect himself. Expert witness Dr. Hördler’s analysis of historical documents proved beyond doubt that the 3^rd Company was on duty when deportation trains arrived. He analyzed Sturmbann orders which allowed him to identify concrete time periods. And especially at times when deportation was very intense – such as in May 1943 when deportations were conducted from Greece, or in August 1943 when the Polish ghettos were evacuated – every member of the company had to be on duty to process thousands of new intakes daily. In line with this, the entire crew was granted special leave after these ‘special operations, as expert witness Dr. Hördler was able to prove with historical documents. This court deems it absolutely impossible that you, Mr. Hanning, never were on duty at this ramp.

Without the guards, this mass murder would not have been possible. They were the operational pillar of this concentration camp. They secured the camp in every regard, from processing the incoming deportation trains, to escorting the selected prisoners on their way to the gas chamber, to guarding the prisoners in outdoor brigades. The menacing backdrop of heavily armed guards nipped any thought of resistance or escape in the bud. And those who attempted to escape the horrors of Auschwitz anyway were ruthlessly shot. This way, every guard – regardless of where in the camp he was deployed – helped ensure the smooth process of mass extermination.

The guard platoons were entrenched in a straightjacket of orders and obedience that inhibited their willingness to speak up and resist. The commandant’s orders and headquarters’ orders that were read before this court have provided us with some poignant insight into the realities of the concentration camp guards’ lives. The documents clearly depict a life governed by routines and rituals. Violence became a habit, inhumanity was part of the job description, rigorous harshness was their mission. They committed their murderous offences within the scope of their professional duties.

This stark regulation did not mean, however, that independent thought and action was impossible. The political system of the day and the world view it encouraged did not relieve anybody from self-criticism and personal responsibility. At the time, the population was certainly under the ideological sway of the Nazi regime. The concentration camp staff was indoctrinated without a doubt. It is correct that the concentration camp inmates were portrayed as so-called criminal elements and harmful to society, as we heard during the reading from the ‘instructional materials’ on the tasks and duties of concentration camp guards.

And yet, every single one of them knew that it was wrong to participate in the murderous affairs in Auschwitz. Every single concentration camp staff member was aware that the people who were murdered in the camp – in particular children, elderly and sick women and men – did not pose a threat to anyone, that they were murdered solely for vile motives.

Criminal intent and guilt

“I would like to see a person who did not know what was going on there. We all knew that Auschwitz was an extermination camp.” This statement by witness Jakob Wendel before this court could not be any clearer. The written statements by other guards, which were admitted as written evidence in this trial, also prove beyond doubt that the entire concentration camp crew knew of the mass killings. This is also true for the defendant. After hearing the evidence, this court has no doubt about it whatsoever.

Just from conversations with other members of the guard crew, the defendant knew about the murders. After hearing the evidence, this court has no doubt about this. Expert witness Dr. Hördler described vividly and plausibly that there was a close connection between the commandant’s offices and the guard platoons. Personnel was often transferred between them. This permeability in personnel structures created informal exchanges of knowledge, in particular at the level of senior and junior officers. Thus, everyone was aware of the others’ specific tasks and mission. If there was any mandate of confidentiality, it only applied to the outside world. After duty, the concentration camp staff would talk amongst each other about what was happening in the camp. They also shared details about the killings, as witnesses Johann Gorges and Kurt Hartmann reported. To assume otherwise would be naïve. The killings were of such extraordinary cruelty that one had to talk about them to bear them. You, too, Mr. Hanning, talked about this extermination with your comrades, we are certain of it. This means you were fully informed about the murders that were going on in the camp – as was everyone else.

We are also certain that you witnessed the murders first-hand.

Mr. Hanning, you spent almost two and a half years in Auschwitz. We deem it impossible that you did not witness, not even a single time, how unsuspecting deportees were sent to the gas chambers and died in horrible agony. Even though you were not on guard duty in Birkenau and the compound was large: Your company was housed in Birkenau until early 1943. You freely moved about the camp and its surroundings – as we gather from your testimony – and you were clearly interested in what was going on in the camp – as you yourself described, for instance, when you went to take a look at the ramp in Birkenau. But then you also saw the crematoria and the gas chamber. Then you also witnessed the killing of the selected prisoners in the gas chambers.

We are also convinced that you saw camp inmates suffer dreadfully from starvation and impossible living conditions. Those who were too sick or too weak to work were selected and sent to the gas chambers. Of course you were aware of this. Both from being on the watchtowers and from escorting the outdoor brigades, you cannot have been unaware of the prisoners’ suffering. It was obvious at the first glance that the inmates were starving, you did not have to be a physician or a medic to see that – as expert Dr. Karger clearly presented.

Finally, the court is also certain that you knew of the cruel mass shootings at the so-called Black Wall. It is true that the court was enclosed by tall walls and could not be seen from the watchtowers, as witness Detective Superintendent Willms plausibly showed with photographs and stills from the 3-D animation. Yet you were not only on the watchtowers, but also in the camp – as you admitted in your testimony. We cannot imagine that you would never have seen the inner courtyard between blocks 10 and 11 and the Black Wall that was located there.

In the opinion of this court, the fact that the defendant continued to serve despite this knowledge about mass extermination; the fact that later on, he even signed up for twelve more years after his transfer to Sachsenhausen concentration camp, shows that he at least approved and tolerated the murders. By serving in the concentration camp, the defendant expressed his solidarity with the perpetrators.

The defendant’s claim that he made two requests for a transfer during his time in Auschwitz (which were both denied) does not change this fact. He stated that he even got “in trouble” for making the second request. We do not believe this statement, Mr. Hanning. After hearing the evidence, we have no doubt that you could have obtained a transfer to the front – if you had wanted it. There are historical documents – such as your SS file card – that prove that you were eligible to serve at the front. But even if that had not been the case, you could have volunteered to serve at the front at any point throughout the period in question. Expert witness Dr. Hördler showed this convincingly in every regard. He described and proved with documents that large numbers of men were sought for front service at all times, especially from 1943. Volunteering for front service was in no way paramount to opposing the National Socialist regime and its ideology, on the contrary: Serving at the front brought recognition and glory. That was exactly the reason why you, Mr. Hanning, pointed out your black Wound Badge, your silver Infantry Assault Badge your Iron Cross second class to this court in your own testimony.

Which means that you, Mr. Hanning, did indeed have a choice. You volunteered to serve at Auschwitz concentration camp following a severe injury at the front. While that is understandable, it is no justification or excuse for your actions. It is simply not acceptable to get involved with something like Auschwitz. And yet you consciously decided to serve at the concentration camp, aware of the extermination that was happening there. And you, Mr. Hanning, obviously handled yourself and your work at Auschwitz quite well, because otherwise, you would not have been promoted twice during your time in Auschwitz. In our opinion, that can only mean that you earned your stripes as a willing and efficient footman in the murderous endeavor.

Furthermore, the court has no doubt that you knowingly and willingly facilitated the well-oiled machine of mass extermination. You were always fully aware that murder of this magnitude could not have taken place without the culture of fear you and your guards maintained. At the very least, you tolerated and approved of this, as well.

Mr. Hanning, you watched for two and a half years as thousands of deported human beings were to murdered in the gas chambers. You watched as these people starved or died of exhaustion before your very eyes. You watched as people were shot to death. You did nothing to stop this, instead you fulfilled your duty as prescribed. That is your personal guilt.

We assume that you only tolerated your service by telling yourself that you had no direct connection to the killings. You told yourself that the “higher-ups” in Berlin were responsible. You only obediently followed orders.

Accountability

Of course not everyone who was ever stationed at the concentration camp in Auschwitz can be held responsible for everything that happened there. The line between innocent (unpunishable) awareness, assistance and complicity is tenuous. But it is not the task of this court to conceptually establish which acts in the concentration camp at Auschwitz are punishable and which are not, instead we are charged with judging the defendant’s guilt or innocence. In our opinion, the defendant has enabled the machinery of death in a manner that is punishable under penal law.

Mr. Hanning, you were not merely a simple guard, but rather you took on a key role. You belonged to a core platoon in the sphere of then-Company Commander Stoppel, and the court can be certain of this as a result of the convincing statement by expert Dr. Hördler. He deliberately surrounded himself with men of similar backgrounds and comparable socialization. This peer group or cohort, as the expert labeled them, enjoyed a privileged status, relative not only to so-called Volksdeutsche (ethnic Germans), foreign auxiliary and Wehrmacht soldiers, but even among SS members themselves.

These privileged soldiers ostentatiously expressed their special status, among other things, by demonstratively wearing prohibited old division patches and military medals – we saw a corresponding photograph of the defendant in the context of the main trial.

With his membership of Stoppel’s inner circle, the defendant was not only privy to direct knowledge of the activities in the camp, but also enjoyed a special authority. Together with other battle-experienced SS men whom he had known since basic training as well as from common war deployments, the defendant made up the backbone of the guard personnel. He enjoyed a prominent status in the concentration camp hierarchy.

Mr. Hanning, you fulfilled an active and important function at Auschwitz concentration camp. In your role as guard, you facilitated the smooth operation of the genocidal machinery. With this, you contributed to the murder of at least 170,000 innocent lives. On these grounds you are to be held responsible under criminal law.

You cannot, however, be sentenced as a co-perpetrator.

Firstly, we are not able to confirm with certainty that the accused served as platoon leader after being promoted to Unterscharführer. Expert witness Dr. Hördler was unable to reach a confident conclusion about this, but according to his research the Unterscharführer were deployed as group leaders as well as platoon leaders. While Mr. Hanning did refer to himself as a platoon leader in his testimony, the tasks he described are 100% commensurate with those of a group leader.

But even if one assumes that the defendant indeed made a significant contribution to the offence after his promotion to platoon leader, it does not justify a sentence as a co-perpetrator, for we cannot determine the defendant’s control over the offence that would be necessary therefor. He had no control over the actual killings, i.e. the murder of the selected prisoners in the gas chambers, the conditions in the camp and the mass shootings. This makes his contribution to the crime one of minor significance. Further, we cannot determine the defendant’s personal interest in the successful outcome of the offence. In particular, our hearing of evidence has not yielded any indication that that the defendant wanted to participate in the “final solution” in a National-Socialist ideological sense. A look at his military career might suggest otherwise – he joined the Waffen-SS voluntarily in June 1940, was promoted to Rottenführer in 1943, then promoted to SS-Unterscharführer in 1943. Yet we cannot base a verdict on mere assumptions.

Rather, the defendant was to be sentenced for accessory to murder.

One or several offenses of accessory to murder?

In this regard, the trial raised the question whether legally speaking, the extermination in Auschwitz is one single main crime or rather a whole series of killings. Or whether, as the prosecution did in its indictment, various single offences must be constructed from this range of offences – such as guarding the main camp, the Hungary operation etc.

In general, the legal system considers something an illegal offence when all of the perpetrator’s illegal actions seem to form one unit, even from a third party’s unadulterated perspective. The prerequisite therefor is a consistent motive and an immediate connection of these actions in space and time. Based on this benchmark, this court is of the opinion that many factors favor defining the “final solution to the Jewish question” as a motive for operating Auschwitz extermination camp, and thus legally defining the entire extermination that went on there as one main offence.

Yet for the verdict in this trial, it is irrelevant whether the main perpetrators committed the murders as one consistent offence or as a series of offences. We can leave this question unanswered, for we must focus on the concrete person of the defendant. In this regard, the Bundesgerichtshof (Federal Court of Justice) has stated the following in a current verdict:

If several persons are involved in a series of offences as a co-perpetrators, indirect perpetrators, instigators or accomplices, the question of whether the individual offences are to be considered one single offence or a plurality of offences must be evaluated and decided for each involved individual separately. The decisive factor is the scope of the contribution to the offence. If an involved party makes an individual contribution to all or some single offences that facilitates only parts of these offence(s), the perpetrator shall be deemed to have perpetrated these offences as a plurality of offences – unless they constitute a natural unit of action. If there is no such individual contribution to the offence, but the involved individual contributes to the offence in a way that simultaneously facilitates all or several single offences by his accomplices prior to or during the course of the series of offences, the individual offences that were simultaneously facilitated must be considered one single offence, as they are linked together in his person by the consistent contribution to an action in the sense of § 52 paragraph 1 StGB (German Penal Code). In this respect, it is irrelevant whether the other persons involved in the offence committed the individual offences as a plurality of offences.

Applied to our case, this means: We cannot determine that the defendant was immediately involved in any individual killings and we do not know whether the defendant actively participated in the gas chamber killings, or whether he shot any prisoners himself. This is irrelevant, however, as the defendant is not accused of having made an individual contribution to some murders that facilitate only these individual offences. Rather, the accusation is that his activities contributed to all main crimes committed during the period in question, i.e. during his presence at Auschwitz concentration camp. The nature of his entire activity as a guard – from the defendant’s own perspective – was to facilitate the general extermination, which means it facilitated a great number of killings. From a legal perspective, this constitutes accessory to murder.

Accessory to mass murder is also mentioned in the German Penal Code. Today, article 6 of Code of Crimes Against International Law (Völkerstrafgesetzbuch) provides collective protection. Even if this code is not applied in this trial, the court is of the opinion that the legal notion behind this provision – protection of the social existence of a persecuted group as a right that transcends the individual – can be used to address and affirm the question whether there is a sufficiently defined offence in terms of the local and spatial context of the killings.

The sentence

Any court would be overwhelmed by the task to mete out a just punishment for the defendants’ criminal facilitation. There is no adequate punishment. The atrocities were so gruesome that any participation, even minor, cannot be punished harshly enough. In that regard, the threat of a legal punishment, which is three to fifteen years of prison for accessory to murder, is equally inadequate. But it is the legal framework within which we have to operate. And of course, in this trial as in any other trial, we must consider the general context in which the punishment is determined, such as the defendant’s age and curriculum vitae, his motive and mindset, his behavior after the offence, and the amount of time that has elapsed since the offence.

In meting out the concrete punishment, we had to focus exclusively on the defendant’s individual culpability. We cannot and may not make him a symbolic scapegoat for all the perpetrators in the Holocaust. Furthermore, when it comes to determining the severity of the punishment, it is irrelevant whether the defendant will actually have to serve the assigned prison term. That is purely a question of penal execution.

Firstly, the court took into account the defendant’s confession in his favor. In addition, the defendant personally apologized for his behavior, thus showing that he is owning up to his guilt and willing to take responsibility for his actions. Does that also mean that the defendant exhibited any genuine regret?

It is certainly true that his description of the extermination seemed more like that of an uninvolved spectator. Perhaps, however, the defendant was simply incapable of providing more than that. We also must not forget that the crime was committed more than seventy years ago. After his return from imprisonment as a POW in 1948, the defendant suppressed his dreadful memories of Auschwitz. He never talked to anyone about his actions in the extermination camp. For seventy years, the defendant lived with his guilt – until, at the advanced age of 93, he suddenly and unexpectedly saw himself confronted with his past in the context of criminal proceedings that stirred significant public and media interest. In this situation, was the defendant unable or unwilling to say any more about his activity in Auschwitz? Does he really only remember concrete details of events that picture him in a positive light? When he avoided the gaze of the joint plaintiffs as they described their suffering – was this an expression of contempt, as the joint plaintiffs interpreted it, or was the defendant overwhelmed by the situation, did he perhaps even feel ashamed? Mr. Hanning, you are the only one who can answer this question. The court cannot do it. In this trial, we had no opportunity to really get to know Reinhold Hanning, the human being.

We further took into account in the defendant’s favor that he was very young, inexperienced and under the sway of National Socialism at the time of the offence.

Another mitigating circumstance to be taken into account was the fact that the offence happened over seventy years ago and the defendant has no other criminal record. The defendant’s advanced age and thus, the high relative severity of the punishment had to be taken into account as mitigating circumstances, as well. In addition, in keeping with the principle of human dignity, which is guaranteed in article 1 of the German constitution, the defendant doesn’t have to have the certainty, but at least a chance of being discharged from prison during his lifetime.

Finally, we must take into account that this trial and the public and media attention that came with it constitute a strain on a 94-year-old defendant. Even though the defendant was impassive during most of the trial, we are certain that the trial was taxing and that he is unlikely to ever recover from it.

Aggravating the defendant’s culpability, on the other hand, is the entirety of the crime. The mass murder of women, children and men at Auschwitz concentration camp is an unfathomable and matchless crime. As another aggravating factor, we had to consider the great number of victims and the repercussions for the victims’ relatives who are still suffering from the loss of their families to this day.

Considering all the factors against and in favor of the defendant, the court considers a prison term of five years to be appropriate for the crime and the level of culpability. A shorter sentence would not be adequate given the degree of the defendant’s culpability.

The court does not believe that part of this sentence is to be considered as served because of a delay in the proceedings that was contrary to the rule of law. While it is correct that after World War II, criminal justice authorities failed to act for decades, and more than 70 years have elapsed since, no criminal investigation has ever been undertaken against the defendant during this time. He was not under any perceptible pressure, on the contrary: He was able to lead his life without any fear of criminal proceedings and punishment.

Mr. Hanning, you faced these proceedings for four months, which deserves recognition. With your confession and apology, you made one first step towards coming to terms with your past. After completion of these proceedings, it is now up to you alone how you want to deal with your guilt.

[1] The subheadings were added by Cornelius Nestler.