This week in Germany, former SS guard Oskar Groning is on trial for his role in Auschwitz more than 70 years ago. The 93 year old said that as a bank accountant, he had been responsible for collecting cash from prisoners arriving at Auschwitz. Groning also witnessed atrocities, including one night in 1942 when he saw prisoners herded into a farmhouse and an SS officer spray gas into it. The screams “grew louder and more desperate, and after a short time became quieter and then stopped completely,” he said. “That was the only time I saw a complete gassing. I did not take part.” To learn more about this and the history of Holocaust trials, Moment spoke to Frank M. Tuerkheimer, professor of law emeritus at the University of Wisconsin and co-author of the new book Forgotten Trials of the Holocaust. The transcript has been edited slightly for length.
Can you talk about the evolution of the legal arguments used during Holocaust trials?
At Nuremberg, the operative term was “war crimes” because Nuremberg was based on treaties—the Hague Treaty, which dealt with how you handle prisoners of war and civilians in occupied territories. And it was the Kellogg-Briand Pact of 1928 that outlawed aggressive war. The conceptual basis for Nuremberg, originally, was crimes against the peace, which was a violation of the Kellogg-Briand Pact of 1928, and war crimes and crimes against humanity. The term genocide, of course, was introduced by Raphael Lemkin in his book, and it was used in Nuremberg by a French prosecutor in his final statement, but it wasn’t a legal term.
As a legal term, it was several years later, when what we had originally called “crimes against humanity” evolved into genocide. And then you had the genocide treaty, and the genocide act. And the concept also expanded because originally, since crimes against humanity and war crimes were predicted on the conduct in war, you had to have a war in order for there to be what we now called genocide—and it had to be a foreign population. For example, in Nuremberg originally, anything the Germans did before they invaded Poland was not a violation of anything, because there was no war. But that has obviously evolved enormously, so that now the president of Sudan is charged with genocide in connection with the way he handled his own people—so you have neither war nor foreign populations.
You say in your book that looking at these trials shows the “progressive formation of public memory of the Holocaust”—can you explain what this means?
The term “Holocaust” was not used originally—no one referred to it as the Holocaust. It was simply the mass murder of Jews or a crime against humanity. In fact, the amazing thing is that, the Kharkov trial, which was a trial for the murder of Jews in the Kharkov area in the Soviet Union, the word “Jew” never even appears. The victims are referred to as citizens of the Soviet Union, and 99 percent of them were Jews. You don’t even have the word “Jew” in the entire trial. However, in the charges brought at Nuremberg, there is a reference to 5.7 million Jews murdered by the Nazis. Even then, knowledge of what we now call the Holocaust was really limited. For instance, when Justice Jackson made his opening statement in November of 1945, he made no reference to Auschwitz, because Auschwitz was liberated by the Soviets, so they were pretty guarded about what they shared. He didn’t know about Auschwitz. He didn’t omit reference to it by design—he just didn’t know about it. The detailed knowledge of all of this just wasn’t there. The use of the term “Holocaust” didn’t start until the 1950s.
The concept of the Holocaust tends to fade away, and people may or may not know there’s something like that. What we try to do by going over the trials is to show that yes, it happened. One of the overarching themes of the book, and actually one of the more telling facts, is, I know of no trial where people are charged with the mass murder of Jews where the defense was, “It didn’t happen.” The defenses are always, “I had no choice,” “I was following orders,” “I actually wasn’t there,” “I didn’t participate.” It’s not, “It didn’t happen.” These defendants have the highest stake in denying that that was the case because life in prison was the option. They had good lawyers, but there’s no case that I know of where they say it didn’t happen. The trials are laden with facts that are very powerful. Our hope in writing the book is that people read it and realize that anyone who says this didn’t happen is at best nuts, and at worst, a rabid anti-Semite.
What’s your take on the trial that started this week, of former SS officer Oskar Groning?
That’s very interesting. He is unlike most Auschwitz defendants. At the Frankfurt Auschwitz trial, there were about 22 defendants, and they were all really surly and nasty and they denied everything. In fact, the adjunct of the camp, Robert Mulka, went so far as to say that he was unaware of the gassing, which was absolutely ludicrous, since every defendant admitted that this was a mass murder operation. Those are the kinds of people you have. They felt they were victims, and they refused to acknowledge anything.
Groning is different. He admits what he did, and he obviously feels remorse over what happened. He has gone public when someone said that the Holocaust didn’t take place, that Auschwitz wasn’t a killing center, he went public at the risk of incriminating himself, he admitted he was there. So he’s a breed apart from your standard Auschwitz defendant. Having said that, I do think he’s guilty. Let’s say he’s right, that all he did was take the money of these poor people who got off the trains about to be gassed, he’s participating in the process. Under the criminal law, if there’s a criminal venture going on, and you play some part of it knowing what its objective is, you’re part of it. In a drug importation conspiracy, the person who checks the schedule of the trains to find out what time they arrive with the stuff and pass that information along to the people who take it off the train, he’s complicit in a narcotics conspiracy, even though he’s checking train schedules. So there’s no question he’s guilty, and I think he’s going to be found guilty of accessory to murder. What he did was an integral part of the process by which about a million Jews were gassed.
Now, should he be sentenced to life in prison? I don’t think so. I think he’s much more valuable, and I think one of the survivors said that he should around and talking to German youth, telling them what happened. If it were up to me, I’d find him guilty of accessory to murder, I’d sentence him to 10 days in jail and release him on the condition that, subject to what his health permits him to do, he goes around and talks to different groups about his Auschwitz experience. I know that’s controversial, but that’s how I would handle it.
Why are they going after him now?
They’re going after him as a point of principle. They said, look, what happened there was so horrendous, and there’s no statute of limitations on murder. If you can be prosecuted forever for killing on person or being complicit in killing one person, you certainly should be prosecutable forever for being complicit in killing a couple hundred thousand of people. That concept is in our statutes of limitations. Most crimes have a statute of limitations—rape is five years, tax fraud is six years, bank robbery is five years. But murder is a breed apart. And that’s the law. He was complicit in murder, and he should be prosecuted. I can’t see how you can justify, especially in a world where there are still survivors, saying, here’s a guy who was part of this process, who led to the killing of all your relatives, who led to your coming within one inch of death, but we’re going to let him go. I think that’s not a tenable position.
What’s the evidence against him?
The statements are going to be the evidence against him. They may not have any eyewitnesses to testify as to what he himself did. But there are records, the Auschwitz records, showing who worked there. And the prosecutors have access to those records showing he was there. I would be enormously surprised if there was an eyewitness who testified to something he did. The people he took money from were all sent to the gas chambers—they’re dead. If someone had survived Auschwitz, the chances that person is still alive now is so small, and that they would recognize either him or—the way it happens in some of these cases—a photograph of him at the time is really very small. I think the case against him would consist of Auschwitz’s internal records showing he worked there as a guard.
How long do you think people should be held accountable for their actions during the Holocaust?
There’s a reason there’s no statute of limitations on murder. It’s a crime that’s so heinous that time should not preclude your prosecution. You’re not going to find a whole lot more 93-year-old people that are with it enough to stand trial. If you find them, they should be prosecuted. I think that’s right. To not prosecute, by saying it was 70 years ago, is to ignore the fact that the law says this ought to be prosecuted, and the crime was so horrendous that it should be.