Dr. Lasse Schuldt, DAAD Lecturer of Law, Faculty of Law, Thammasat University
On 20 September 2016 (published 28 November 2016), the German Federal Court of Justice (Bundesgerichtshof) rejected an appeal by 95 years old Oskar Gröning who had served for the national-socialist “SS” in the concentration camp of Auschwitz and who had been found guilty of assistance (aiding) to murder in 300,000 cases. He had been sentenced to four years in prison. The Federal Court decision is a landmark case as it approves a substantial reduction of the requirements necessary to establish criminal assistance.
I. Summary of the facts
Mr. Gröning joined the SS in 1940. He first worked in various SS offices, being responsible for accounting. In 1942, at the age of 21, he was transferred to the concentration camp Auschwitz in order to support the “operation Reinhard” (Aktion Reinhard). This operation was intended to extinct the Jewish population in German-occupied Poland and Ukraine. For this purpose, the camp in Auschwitz was enlarged and equipped with additional gas chambers and crematoriums enabling the killing and cremation of 5,000 people per day. In 1944, the SS started the “operation Hungary” (Ungarn-Aktion) which targeted the Jewish population in Hungary and which followed the pattern of the previous “operation Reinhard”. “Operation Hungary” was conducted between 16 May and 11 July 1944.
Overall, 141 trains transporting about 430,000 people from Hungary arrived in Auschwitz. At least 300,000 of them were immediately killed. The rest was killed by forced labour (Vernichtung durch Arbeit).
Since his transfer to Auschwitz, Mr. Gröning had worked in the camp’s office for the administration of prisoners’ assets (Häftlingsgeldverwaltung). This work involved the sorting and accounting of the money that had been taken from the deported. Moreover, one of his duties was to deliver the money to Berlin. As part of his general duty as an SS officer in Auschwitz Mr. Gröning was expected to suppress any resistance or flight attempts, if necessary by the use of weapons. Mr. Gröning knew that the deported Jews were killed. He was aware that his activity supported the killing machinery, but continued his work in order not to be transferred to serve in the war.
On at least three occasions, Mr. Gröning served at the ramp of the camp’s train station where the deported people arrived. He took care of the people’s luggage to prevent thefts in order to uphold the victims’ wrong belief that they did not have to fear anything in the camp. This was considered necessary to ensure an orderly process of selection and killing. Moreover, armed SS personnel’s presence at the ramp was intended to discourage any flight attempts.
On 15 July 2015, the Regional Court (Landgericht) of Lüneburg found Mr. Gröning guilty of assistance to murder in 300,000 cases as part of “operation Hungary”. Mr. Gröning was sentenced to four years imprisonment. On the one hand, the Regional Court noted in his favour that he never denied his responsibility and that he committed himself to openly provide information regarding his tasks and involvement in Auschwitz. Moreover, the Regional Court acknowledged Mr. Gröning’s age (94 at the time of the Regional Court’s judgment) and the lacking need for incapacitation. On the other hand, the high number of victims and the crime’s lasting impact on surviving dependents were noted by the Regional Court to his disadvantage. The Federal Court of Justice approved this decision in all respects.
II. Assistance to murder in 300,000 cases
The legal challenge of this case was to connect Mr. Gröning’s work in the camp to the death of 300,000 people in a way that justified a conviction for assistance (aiding) to murder. The Regional Court of Lüneburg found that Mr. Gröning’s three days of duty at the ramp as well as his continuous work in the camp’s office for the administration of prisoners’ assets accounted for assistance to the murder of all deported people that were killed in Auschwitz between 16 May and 11 July 1944. The Federal Court of Justice (hereinafter “the Court”) accepted and elaborated this reasoning.
1. The decision of the Federal Court of Justice
In its decision, the Court notes that assistance in the sense of Sec. 27 of the German criminal code (Strafgesetzbuch) needs to be understood as every action that objectively supports or facilitates the realisation of an offense. However, an act of assistance does not need to be causal for the concrete realisation. Moreover, acts of assistance can occur during the preparational stage of the predicate offense or after all elements of the predicate offense have already been realised. Furthermore, psychological assistance (i.e. mental support for the main perpetrator, sustaining his will to commit the crime) is punishable as well. An example in the latter regard can be the promise to utilise or exploit the proceeds of the crime.
However, according to the Court, cases of state-organised mass crimes pose several particularities that need to be taken into account when applying the provisions of the criminal code: The systematic genocide of European Jews by national-socialist Germany was conducted, on the one hand, by a number of individual persons at the top end of the political, bureaucratic or military hierarchy who were not directly engaged in acts of killing, and, on the other hand, by a majority of people who, being part of a hierarchic chain of command, directly committed these acts. Every single case of murder therefore involved contributions on different levels of hierarchy.
Regarding the three days of duty at the ramp, the Court considers that Mr. Gröning assisted to the murder of the people of whom he had guarded the luggage for the purpose of dispersing any suspicion. Moreover, his presence at the ramp discouraged any flight attempts on the part of the victims. These acts therefore constituted acts of assistance to murder.
More interestingly, however, the Court also approves the conviction for assistance to murder based on Mr. Gröning’s general discharge of duties and his work in the camp’s office for the administration of prisoners’ assets. The vast majority of the 300,000 indicted cases were committed while he was performing these office duties. In this regard, the Court holds that Mr. Gröning’s general discharge of duties in Auschwitz assisted the leading state and SS figures who ordered and implemented “operation Hungary”. According to the Court, the national-socialist rulers and leading SS officials were able to implement the operation only because they could rely on a structured and organised “industrial killing machinery” made up by willing and obedient subordinates. Therefore, the will and intention of those high-level persons to commit the crimes in question were substantially dependent on and sustained by these conditions. Mr. Gröning was part of this apparatus and contributed to the control of the deported persons as well as to the exploitation of their assets. Though the leaders did not know Mr. Gröning personally, they relied on all SS officials in the camp.According to the Court, it was sufficient that the leaders were aware that all positions were filled with reliable, obedient subordinates, guaranteeing a seamless implementation of “operation Hungary”. As per the findings of the Regional Court, Mr. Gröning was aware of this context. The Federal Court agrees and considers that he fulfilled his duties, knowing that he, together with others, thereby created the conditions enabling those responsible in the state and the SS to decide and order extinction operations at any time because they could rely on the implementation of their orders.
The Court affirmed that also bureaucrats working in the camp’s offices were responsible for the murders committed in Auschwitz. It needs to be emphasised again that Mr. Gröning was not a watchman. Rather, it was only one of his secondary obligations to oversee camp inmates and prevent them from fleeing. By holding this bureaucrat accountable for assistance to murder in all cases committed during “operation Hungary”, the decision enters new legal territory.
A) Relevant jurisprudence
Previous judgments dealing with Holocaust crimes have demanded proof of concrete acts of assistance to a particular predicate offense. In a 1969 ruling, the Federal Court of Justice rejected the claim that all persons who were part of the extinction operations implemented in Auschwitz and who somehow acted on the occasion of such operations participated in the murders committed there. Rather, the Court demanded that every act of assistance needed to “concretely” contribute to the commission of the predicate offense. The 1969 case dealt with a dentist who was in charge of taking care of SS officers in Auschwitz. Back then, the Court noted: “The mere fact of being part of the camp’s staff and the knowledge of the camp’s purpose to extinct the Jewish people are not sufficient to attribute to the defendant acts of killing committed while he was in the camp.” Thereby, the Court rejected the notion of “mass crimes” and insisted that every act of assistance needed to be assessed with due regard to the time and place of the predicate offense.
In some cases, the Court accepted rather broad outlines of the predicate offense. That however could only be justified by the fact that such cases dealt with high-ranking national-socialist cadres who planned and implemented mass deportations and killings from an elevated position within the hierarchy, targeting the group of victims as a whole, thus without direct relations to individual acts of killing. For instance, in a 1967 decision, the Court upheld a conviction for assistance to murder in 300,000 cases of a high-level SS officer (Obersturmbannführer) who was responsible for building trust with the Jewish population in Hungary, thereby facilitating their deportation. In that decision, the Court also demanded a conviction of a mid-level officer of the Central Security Office of the Reich (Reichssicherheitshauptamt) who maintained close relations with the Hungarian government.
Regarding low-level watchmen, however, there has been a series of Regional Court decisions that insisted on the requirement of a concrete predicate offense. In 1976, the Regional Court of Frankfurt acquitted a former Auschwitz-Birkenau watchman because the court was unable to prove concrete acts of assistance at the train station’s ramp. In 1983, the Regional Court of Stuttgart acquitted another former Auschwitz watchman who had served on the camp’s watch towers. The court could not prove individual acts of killing. Moreover, the court did not even consider that being a watchman in itself could amount to assistance to murder. Also the Federal Court of Justice reaffirmed the requirement of a concrete predicate offense. In a 1987 ruling, the Court was not satisfied with the findings of a regional court regarding a defendant’s concrete assistance in the murder of Weimar politician Ernst Thälmann in the concentration camp of Buchenwald. In 1991, the Regional Court of Siegen found a former Auschwitz watchman guilty of individual acts of killing. However, he was acquitted on further counts of assistance to murder as the court found itself unable to prove that he had actually lead inmates to the gas chambers.
In 2011, however, a judgment of the Regional Court of Munich II found John Demjanjuk, a former watchman of the extinction camp in Sobibór, liable of criminal assistance to murder in overall 28,060 cases. This decision seemed to indicate a turning point in the above-described long-standing jurisprudence as it held that all actions of watchmen in an extinction camp (such as in Belzec, Sobibór and Treblinka) facilitated the realisation of the mass killing of Jewish people. Unique about this case, however, was the fact that it concerned killings in the comparably small camp of Sobibór. According to the findings of the Regional Court, about 600 inmates were detained in Sobibór. The group of watchmen to which Mr. Demjanjuk belonged (the so called Trawniki) counted between 100 to 150 men who all needed to be on active duty when a new train of deported persons arrived. In comparison, about 120,000 persons were detained in the Auschwitz concentration camp. Of the overall SS staff that varied between 2,000 and 4,500, only a small fraction needed to serve when the trains arrived. The size of Auschwitz comprised 40 square kilometres, whereas Sobibór extended not beyond 0.25 square kilometres.
Against this factual background, the Regional Court of Ellwangen rejected to open a criminal trial against Hans Lipschis, a former Auschwitz watchman, in a 2014 decision. The court noted that the findings of the Regional Court of Munich II concerning Sobibór could not be applied to Auschwitz. Regarding Sobibór, it might have been possible to attribute all acts of killing to all watchmen without circumventing the requirement of a concrete predicate offense, because of the small number of watchmen and the fact that all of them needed to be on active duty. In other words, the Sobibór watchmen were much closer to the actual acts of killing. In the case of Auschwitz, however, the Regional Court held that such an argumentation was not available. Due to the camp’s much bigger size, it could not be assumed that all watchmen assisted to all cases of murder. Moreover, normal watchmen were not allowed entry to the areas where the gas chambers and crematoriums were. Therefore, the Regional Court found it unlikely that the 94 years old, cognitively weak Mr. Lipschis could be proven guilty in a criminal trial.
The Federal Court of Justice was aware of these older rulings when it rendered the 2016 Gröning decision. However, the Court claimed that Mr. Gröning’s case was materially different: Not “everything that happened in Auschwitz” was attributed to him, but rather only the acts of murder committed in the “firmly defined” “operation Hungary”. Moreover, according to the Court, Mr. Gröning was found guilty of “concrete acts with a direct connection to the killings in Auschwitz”. The Court therefore estimates itself in conformity with its 1967 ruling concerning high-level national- socialist functionaries. In addition, it could not see a contradiction with its decision of 1969 that demanded proof of a concrete act of assistance to a definable predicate offense.
The Court’s argumentation is not convincing. First, the reference to the decision of 1967 is not valid because that case dealt with high-ranking – rather than low-level – SS officers pressuring the Hungarian government and actively reassuring unsuspecting Jewish people, thereby indeed materially facilitating the deportation of hundreds of thousands of Jews. Second, the Court did not take into account at all the arguments submitted by the Regional Court of Ellwangen in its 2014 decision. That would have been all the more desirable as Mr. Gröning was neither a high-level national socialist nor a watchman but rather an office worker, a bureaucrat. It is therefore the first time that the highest ordinary court of Germany has approved the conviction of a low-level bureaucrat for assistance in the murder of 300,000 people. Third, and on a more fundamental note, the Court’s opinion is at odds with general criminal law doctrine.
Though, according to a long-established jurisprudence, acts of assistance do not need to be causal, their extent of facilitation however needs to be roughly quantifiable and describable. Assistance can only be punished if it contributes to the commission of a predicate offense, in other words, if it facilitates the offense committed by the main preparator. That is the so-called accessory (akzessorisch) character of criminal assistance. The predicate offense therefore needs to be sufficiently concrete in order to establish the extent to which the acts of assistance contributed to its commission. The Court, however, satisfies itself by noting that Mr. Gröning “contributed to the conditions enabling those responsible in the state and the SS to decide and order extinction operations at any time because they could rely on the implementation of their orders.” Thereby, the Court essentially establishes that helping to sustain a “killing machinery”, as distinguished from facilitating the actual commission of concrete acts of murder, constitutes criminal assistance. This means that the support of a murderous regime or operation is enough to hold someone criminally accountable for concrete crimes committed through it. This effectively removes the accessory character of assistance.
The requirement of a concrete act of assistance to a defined predicate offense is also based on fundamental principles of criminal law. In order to prevent that a person is punished twice for the same act (principle of ne bis in idem), but also to enable the prosecution of hitherto unknown crimes, it is necessary that a concrete offense can be differentiated from similar punishable acts of the same person. In German criminal law, an act of killing against a certain person is usually considered separate from any other act of killing against another person. A broader perspective grouping together train transports to concentration camps and consecutive killings or even whole killing operations implemented by the Nazis may only be justified with regard to those responsible on the higher levels of hierarchy. Regarding low-rank watchmen or even bureaucrats, such an argumentation would extend the established limits of a criminal offense to an unjustifiable extent.
Furthermore, the Gröning case dealt with acts of murder (sec. 211 of the German criminal code), not with acts of genocide (sec. 6 of the German code of international crimes, Völkerstrafgesetzbuch). Whereas the criminalisation of genocide indeed serves the purpose of protecting the social existence of a certain group (national, racial, religious, ethnic), the provision criminalising murder intends to protect individual legal goods (Rechtsgüter). Attacks against individual legal goods, however, may only exceptionally be treated jointly and only within narrow limits. One of these exceptions relates to high-ranking officials planning and implementing mass murder, but not to low-level bureaucrats who were not implicated in actual acts of killing.
Moreover, the Court’s argument according to which SS officers like Mr. Gröning psychologically sustained the cruel intentions of National Socialist leaders does not seem entirely logic. The Court alleges that those responsible within the regime could implement such killing operations because they could rely on “willing and obedient subordinates”. However: These subordinates have been put into their positions by their leaders for the implementation of mass murder. How then can it be assumed that the subordinates could, from their part, encourage and sustain the leaders’ intention to implement the killing machine? Such an argumentation would result in the odd finding that “obedient subordinates” who were appointed and controlled by their leaders could nonetheless re-stimulate exactly these leaders. In reality, the relationship of dependence between leaders and subordinates speaks against such an assumption.
Regarding the subjective requirements of assistance, the Court applies its own long- established jurisprudence. Accordingly, a criminal assistant needs to appreciate only the material dimension of wrongdoing (Unrechtsgehalt) and the direction of the attack (Angriffsrichtung) on legally protected goods. An assistant does not need to be aware “when, where, against whom and under which circumstances” the offense is committed. Though this is in line with the Court’s prior rulings, the consequences of this jurisprudence are vividly demonstrated here: The Court satisfies itself with Mr. Gröning’s general knowledge that large numbers of murders were committed in Auschwitz and that his discharge of duties sustained the national- socialist leaders intention to implement “operation Hungary”. Such an assessment, once more, neglects the accessory character of criminal assistance. It is therefore preferable to demand that an assistant’s intention needs to cover a more or less concrete predicate offense.
Though it is understandable that German courts try to establish accountability for the murders committed by the national-socialist regime, section 27 of the German criminal code that deals with criminal assistance does not provide a blank check. The Court should have elaborated more detailed how Mr. Gröning’s general discharge of duty as a bureaucrat concretely facilitated which acts of murder committed by other camp officials. That might be an extreme difficult task due to the more than 70 years that have passed since. It might also lead to the acquittal of indicted persons due to a lack of proof. However, today’s scarcity of concrete evidence has been caused by the deplorable absence of thorough and comprehensive criminal prosecution for decades since the end of World War II. These past shortcomings clearly cannot justify a blurring and softening of criminal law standards nowadays.
In recent years, German prosecutors have found new interest in crimes committed under the national- socialist regime. In 2011, the first of these new cases ended with a judgment by the Regional Court of Munich II in the Demjanjuk case. That case did not become final due to Mr. Demjanjuk’s death less than a year after the judgment was rendered, while his appeal was still pending. Generally, the defendants’ high age has become an increasing problem for the prosecution. In April 2016, a trial against a former Auschwitz watchman to be held at the Regional Court of Hanau needed to be cancelled due to the defendant’s death. In September 2016, the Regional Court of Kiel rejected to open a trial against a former Auschwitz radio operator as the elderly defendant was unfit to stand the trial. Another criminal trial at the Regional Court of Neubrandenburg is scheduled to restart in 2017 as it was cancelled due to a challenge for bias against the trial judges.
By now, the Holocaust dates back more than 70 years. The time that has passed does not in any way diminish or decrease the heinous character of the crimes committed and the injustice suffered by the victims. The steadily growing distance in time, however, makes it increasingly difficult to prove individual guilt. Even though the crime of murder is not subject to any statute of limitation under German law, factual challenges related to the collection of evidence and the defendants’ high age need to be considered.
In too many cases, German prosecutors have waited more than 70 years to prepare indictments against national socialist criminals. Far more suspected perpetrators have never been brought to justice. The lack of meaningful efforts to prosecute those involved in the mass murder of the European Jews, however, cannot serve as an excuse for neglecting basic tenets of criminal law doctrine today. The legitimate goal of bringing murderers to justice should not be pursued at all costs. The ruling of the Regional Court of Lüneburg in the Gröning case sets a dubious precedent. In June 2016, the Regional Court of Detmold followed suit and found an Auschwitz watchman guilty of assistance to murder in 170,000 cases.21 This highly problematic jurisprudence has now been endorsed by the Federal Court of Justice. Though lower courts are not legally bound by the Court’s decisions, they usually do not to depart from them.
 Federal Court of Justice of Germany, Order of 20 September 2016, 3 StR 49/16, available (in German) at http://juris.bundesgerichtshof.de
 Regional Court of Lüneburg, judgment of 15 July 2015, 27 Ks 9/14, 27 Ks 1191 Js 98402/13 (9/14), available (in German) at http://www.rechtsprechung.niedersachsen.de/jportal/portal/page/bsndprod.psml?doc. id=KORE221452015&st=null&showdoccase=1
 According to section 78 of the German criminal code (Strafgesetzbuch), murder is not subject to any statute of limitation.
 Federal Court of Justice, judgment of 20 February 1969, 2 StR 280/67, partly published in Neue Juristische Wochenschrift 1969, p. 2056.
 Ibid. (translation by the author).
 See Regional Court of Ellwangen, order of 27 February 2014, 1 Ks 9 Js 94162/12, available (in German) at http://www.burhoff.de/asp_weitere_beschluesse/inhalte/2510. htm.
 Federal Court of Justice, judgment of 22 March 1967, 2 StR 279/66.
 Regional Court of Frankfurt, judgment of 26 February 1976, 4 Ks 2/73.
 Regional Court of Stuttgart, judgment of 11 August 1983, 9 Ks 11/82.
 Federal Court of Justice, judgment of 25 March 1987, 3 StR 574/86, Neue Juristische Wochenschrift 1988, p. 2898.
 Regional Court of Siegen, judgment of 25 January 1991, Ks 130 Js 2/84.
 Regional Court of Munich II, judgment of 12 May 2011, 1 Ks 115 Js 12496/08 (the defendant, Mr. Demjanjuk, died before the judgment became final), para. 1203; see also Fahl, Einige materielle und prozessuale Überlegungen zum Fall Demjanjuk, Zeitschrift für das Juristische Studium 3/2011, pp. 229-234.
 Figures according to the Regional Court of Ellwangen, supra note 6.
 Regional Court of Ellwangen, supra note 6.
 Translation by the author.
 Translation by the author
 See the arguments of the Regional Court of Ellwangen, supra note 6, in this regard.
 Federal Court of Justice, judgment of 8 May 1990, 3 StR 448/89, NStZ 1990, 501.
 K. Kühl, Strafrecht, Allgemeiner Teil, 5th ed., Verlag Vahlen 2005, § 20, para. 242.