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from the just-the-bookkeeper-is-no-longer-a-defense dept.
The BBC reports that the 2015 conviction of 95-year-old Oskar Groening, the so-called "bookkeeper of Auschwitz," has been upheld on appeal. Groening's case marks a significant change in prosecution policy, since he was neither a leading Nazi figure who ordered executions, nor did he apparently commit any murders (or other violent acts) directly. Nevertheless, Groening was sentenced last year to four years in prison as an accessory to the murder of 300,000 people:
The verdict overturns a 1969 ruling that being a staff member at Auschwitz was not enough to secure a conviction. Nazi hunter Efraim Zuroff said it was the biggest change in years. [...] For decades, thousands of ex-Nazis who took part in the Holocaust escaped conviction. Monday's ruling sets a precedent for pursuing suspects, now in their nineties, accused of serving in death camps.
Last year, when Groening's trial was getting started, the New Yorker ran an extended piece by Elizabeth Kolbert on the history of Nazi trials. She described the "three waves" of prosecutions, where each held different standards of culpability. The first were the prominent public trials at Nuremberg: "The initial phase was the one scripted for the movies. The villains were demonic, the rhetoric stirring, and at the end came the satisfying snap of the hangman’s noose." The next involved lower ranking Nazis, but a line had to be drawn for prosecutions. As Groening himself said in an interview: “then where would you stop? Wouldn’t you also have to charge the engineer who drove the trains to Auschwitz? And the men who ran the signal boxes?”
Eventually, the standard settled upon in the "second wave" was to merely prosecute those who actually committed murders, and specifically those whose actions went beyond the mere bureaucratic functions of the camps into sadistic or excessive behavior. Reading beyond Kolbert's article, I have learned this standard was partly justified by new psychological research conducted in the 1960s and 1970s, such as the Milgram experiments (whose results were first released around the time of trial of Adolf Eichmann) and the Stanford Prison Experiment. The first experiment claimed that most ordinary volunteers were willing to convey apparently lethal shocks to an unseen (but heard) participant in a "learning" exercise (actually an actor), merely because it was the given experimental protocol. The latter involved a wide variety of spontaneous bullying, intimidation, and even sadistic behavior that emerged in ordinary participants who were randomly divided to be "guards" and "prisoners" in a simulated "prison"; the experiment was designed to continue for 14 days but was abruptly shut down after 6 days because of ethical concerns about the level of abuse that was occurring. (Interestingly, dramatized versions of both of these experiments were released as films in the past year: Experimenter and The Stanford Prison Experiment .)
[Continues...]
But in recent years, the "just following orders" defense has been called into question as the "third wave" of prosecutions have begun. (Milgram's experiments, too, have been subject to renewed debate about their meaning.) Groening's prosecution was relatively easy, since he has been forthcoming about his role in the camps for decades. He felt a sense of duty to debunk "Holocaust denier" propaganda, to speak out against Neo-Nazis, and to tell the story of the horrors of the camps, writing a memoir and giving extended interviews to the BBC and Der Spiegel in 2003-2005. At the time, Groening had nothing to fear from the "second wave" standards of prosecution, but now his conviction represents another turning point in Nazi trials.
Beyond the descriptions of the trials, Kolbert's New Yorker article contains a great deal about her great-grandmother who died in the camps, whom Kolbert decided to memorialize in a Stolperstein, a small stone installed in memory of Holocaust victims into the sidewalks or streets in many European cities. She muses in her conclusion on whether these trials of nonagenarians are actually "justice" or something else:
There was never going to be justice for the Holocaust, or a reckoning with its enormity. The Stolpersteine, in a way, acknowledge this. They don’t presume to do too much. That is perhaps why they work. And perhaps the Gröning case and any others that may follow should be approached in a similar spirit. They should be regarded less as trials than as ceremonies—another kind of public art on the theme of its inadequacy.
(Score: 5, Interesting) by pTamok on Tuesday November 29 2016, @12:34PM
I have some disquiet at this.
I don't speak German, was not present at the trial, and have not read the transcripts.
That being said, if the situation is one where one refused to do the job at risk of (possibly severe) punishment, then expecting the powerless to refuse to obey the orders of the powerful is asking a great deal, for a couple of reasons.
First, when you are at the hands of a regime that treats some human beings as lesser or inferior people (Untermensch), and you either see, or know of the treatment being meted out, it is understandable that you might be inhibited from drawing attention to yourself by refusing to do as you are told. This is not the "I was only obeying orders defence", but "I was in fear for my (or my family's) life/health/wellbeing." It's only since WWII and the Nuremberg trials that military codes have accepted the correctness of disobeying unlawful orders (History here: https://en.wikipedia.org/wiki/Superior_orders [wikipedia.org] ).
https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter43_rule154 [icrc.org]
However, secondly, although it is correct to disobey unlawful orders, and indeed a requirement - in certain circumstances, that requirement is lessened: if you read Nuremberg principle IV ( https://en.wikipedia.org/wiki/Nuremberg_principles#Principle_IV [wikipedia.org] ):
"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
So the question at issue is whether a moral choice were possible. Moral questions can be hard to answer with generally acceptable answers as people's, and culture's moral compasses can be very different. The German courts have, presumably, decided a moral choice was available.
However, thirdly, the moral judgements of the 21st century may well not be the moral judgements of the mid-twentieth century. Many things have changed since WWII, and we should be careful not to judge people's actions according to our current morality, but in the context of the morality pertaining to that time in which their actions were performed. This is not to argue that genocide was acceptable, but the Nuremberg principles were laid down after WWII had ended in the West. Is it fair to convict someone on the basis of rules made after the actions were performed: retroactive application of laws? Most people think that is not correct. Again, I can only assume the German courts are not applying retroactive laws.
I have little sympathy for genocidal maniacs. But I do wonder what the position might be of someone coerced against his or her better judgement into working in or for an organisation run by genocidal maniacs.
I stress, I do not know the details of this case, but I hope that the German courts are not enabling injustice in order to be seen to make a statement about Nazi genocide.
(Score: 5, Insightful) by GungnirSniper on Tuesday November 29 2016, @01:00PM
The Left has been obsessed with morally convicting the American Founding Fathers for slavery as part of their ceaseless ideological struggle. Why would they stop retroactively applying their standards to the past?
This show trial is virtue signalling at its worst. Putting a 95 year old man in a cage for things he did 70 years ago cannot be called justice in any sense of the term. Let us not forget that Israel's stance is that the statute of limitations has expired for war crimes committed in 1945 and earlier. [wikipedia.org]
Tips for better submissions to help our site grow. [soylentnews.org]
(Score: 3, Informative) by Anonymous Coward on Tuesday November 29 2016, @01:44PM
> Let us not forget that Israel's stance is that the statute of limitations has expired for war crimes committed in 1945 and earlier.
The state of Israel is not the arbitrator of morality. Far from it in fact.
(Score: 2) by VLM on Tuesday November 29 2016, @02:08PM
In fact and theory, yes.
Pragmatically in propaganda and control of the media, government, in this situation, the judicial system, oh yes they are. That's kinda the root cause of the problem.
(Score: 3, Interesting) by meustrus on Tuesday November 29 2016, @02:46PM
Israel is the single largest body qualified to weigh in on holocaust prosecutions as it represents most of the victims. One would expect them to want more prosecution than is reasonable even. If you want to prosecute the holocaust more than Israel, you've really gone off the rails.
If there isn't at least one reference or primary source, it's not +1 Informative. Maybe the underused +1 Interesting?
(Score: 4, Insightful) by VLM on Tuesday November 29 2016, @01:36PM
provided a moral choice was in fact possible to him
One example of hair splitting is a low level laborer has very little moral choice available in that insubordination will merely result in some other poor bastard getting punished by a kangaroo court more than half a century later.
Is it more moral to courageously take the hit, or to cowardly make some other poor bastard take the hit for you?
Remember its a given that your refusal to file accounting paperwork does not in any way affect the outcome of the war or the filing of the paperwork or the death of anyone in a camp, it just means you'll be punished and some other poor bastard will have to file the paperwork for you and take the hit for you of "helping the former regime file paperwork".
There's a classic example of Dr Mudd from the Lincoln assassination who got railroaded because he patched up Lincoln's assassin after he got shot and the public wanted blood so they got it. But morally and ethically Dr Mudd did nothing wrong because some poor bastard in the medical profession was going to bandage up the assassin one way or the other so even if he knowingly helped an assassin its not "really" his fault. If anything its the fault of an entire profession taking the Hippocratic Oath and all that crap.
In summary, if uncivilized people want blood, they'll find a way to get it, but it doesn't mean its right.
(Score: 0) by Anonymous Coward on Wednesday November 30 2016, @04:28AM
(Actually, that line had been used before this episode.)
he patched up Lincoln's assassin after he got shot
To be clear, it was Lincoln who got shot--at least at that point.
Some say that Booth fractured his leg when he jumped from the president's box onto the stage.
More likely, it was due to an incident with a horse, later that night.
Samuel Mudd, MD, being unaware of what had transpired, tended to his patient and set the injured leg.
The doctor was tried and convicted[1] then sent to prison for life[2], having done absolutely nothing to deserve that.
Days later, Booth holed up in a tobacco barn which was set on fire[3] when he refused to come out.
Having been ordered to take Booth alive, a trigger-happy sergeant shot him in the neck anyway, paralyzing him.
Booth was dragged out and died after a few hours.
[1][3] by military men, not civilian authorities.
[2] Mudd was pardoned before 4 years had passed.
-- OriginalOwner_ [soylentnews.org]
(Score: 2) by tfried on Tuesday November 29 2016, @01:47PM
I do not know the details of this case, either, but, yes, the ruling court did ponder the question whether Groening had any choice, and they concluded that yes, he did have a real choice. Not for open rebellion, I take it, but e.g. applying for relocation or voicing simple "dissatisfaction" with the job would have been entirely possible all along, without risking any severe personal consequences. Note that his was not a combat position, and he did the job for years.
Now, the decision at hand was by an appeals court, and AFAIU, the question of "did he have any choice" was not central to the appeal. That seems to have focussed more on "did he play any significant role", instead. The appeals court concluded "yes, he did", and upheld the earlier ruling.
(Score: 2, Informative) by pTamok on Tuesday November 29 2016, @02:40PM
Just as a point of information, according to the Wikipedia article on Oskar Groening (https://en.wikipedia.org/wiki/Oskar_Gr%C3%B6ning ), he applied for transfer away from Auschwitz, and was refused.
Gröning claims he went to his boss and told him that he could not work at Auschwitz any more, stating that if the extermination of the Jews is necessary, "then at least it should be done within a certain framework".[3]:138 Gröning claims that his superior officer denied this request citing a document he had signed before being posted, forcing him to continue his work.[3]:138
and, again, the claim is he also expressed dissatisfaction
... he yet again complained to his superior.[3]:167–168 His boss, an SS-Untersturmführer, listened but reminded him of the pledge that he and his comrades made. Gröning thus returned to work.
I have neither the time, knowledge of German, or of German law, or even of history to look into this in more detail, but my disquiet (which may be entirely unjustified) remains. In any event, thank you for providing some detail on the deliberations of the court and the basis of the failed appeal.
(Score: 5, Informative) by bd on Tuesday November 29 2016, @06:53PM
Sorry for the long post.
Records showed that Gröning actually was transferred to the front after two years,
something that was fairly high-risk in the later stages of the war, especially as an
SS trooper.
It is often said that no one in the SS was ever punished for refusing to kill prisoners,
but rather transferred to non-related posts, making the "I had to follow orders"
defense useless. But actually, his task was not murder, and therefore he arguably
would have been dealt very harsh punishment for not following his "lawful" orders.
He also would not have exactly known what he signed up for before making the
decision to take this assignment due to secrecy.
So he really was in a situation that he did not want to be in and had no way of
going out other than suicide.
It seems to speak for him that, given that choice, he apparently asked for what
amounted to soviet assisted suicide, if he really wanted to be transferred to the
front in 1943.
Since the 1980's, he actually publicly challenged neo-nazi holocaust deniers and
worked as a witness, which is actually fairly uncommon among SS men.
This is also propably the only reason why he was now tried, because it made
him known to the public.
On the other hand, we will never know how much of the story concerning his
disgust at the time about the mass murders was true and how much was changed
in hindsight, seeing that most of that part of the story is solely based on what
he said himself (other than being transferred in the end).
What made me somehow doubt him was the language he used when he
described Auschwitz. He somehow got back into the persona of an SS guard
and used rationalisations and language that makes your stomach turn.
And he actually said that he was not opposed to murder of jews in general,
but just could not cope with the levels of atrocity that happened there. Which
was the reason why he later felt guilt about it.
Somehow, this actually makes him quite believable, as he _was_ from a
right-wing family and indoctrinated from childhood. I would not have believed
him if he said he thought at the time that murdering jews was wrong.
Well, whatever. They should have tried him properly in the 1970's. And should
have tried people more obviously guilty than this guy. There were literally
thousands of them back then.
(Score: 2) by DeathMonkey on Tuesday November 29 2016, @07:13PM
Well, he did join the SS of his own will. I guess the question is how much he may have know about what was going on when he made that decision.