Daniel Suleiman:More Than ‘Moral Complicity’ at Auschwitz
http://www.wsj.com/articles/more-than-moral-complicity-at-auschwitz-1430349260
On the opening day of his criminal trial in Lüneburg, Germany, on April 21 for complicity in the deaths of approximately 300,000 Jews, most of whom were Hungarian, former Waffen-SS officer Oskar Gröning conceded that he bears “moral” responsibility for the role he served at Auschwitz, the notorious concentration camp where he was stationed from 1942-44. But Mr. Gröning, who is 93, does not admit that he is guilty of crimes.
“It is without question that I am morally complicit in the murder of millions of Jews through my activities at Auschwitz,” he told the court, according to the Guardian. “But as to the question whether I am criminally culpable, that’s for you to decide.”
Mr. Gröning’s strategy of conceding one battle in an attempt to win a more important one is a common criminal-defense tactic. Dzhokhar Tsarnaev, who was convicted by a jury on April 8 for his role in the Boston Marathon bombings, is trying something similar.
On the first day of the guilt phase of his trial, Tsarnaev’s lawyer admitted that Tsarnaev and his brother were responsible for the bombings and the murder of a university police officer. Why? Because by handing the government a victory in the guilt phase, Tsarnaev hopes to strengthen his argument, being made in the sentencing phase, that he should be spared the death penalty.
Sometimes this strategy works. But sometimes it is merely all a defendant has. Should Mr. Gröning’s concession that he bears moral responsibility for the deaths at Auschwitz spare him a guilty verdict?
The short answer is no. There are clearly situations in which moral failings do not, and should not, equate with criminal guilt. Adultery is commonly considered a moral failure in the U.S., but Americans are no longer prosecuted for it. Doing nothing while a neighbor’s house burns to the ground could result in feelings of moral guilt, but it is almost certainly not a crime. In an example closer to Mr. Gröning’s situation, someone who refused to hide a friend or neighbor as the Jews were being rounded up in Budapest might feel “morally complicit” in their subsequent deaths, but we would not consider him criminally responsible.
Let us assume the facts are as Mr. Gröning contends—that he collected the belongings of incoming prisoners at Auschwitz, and witnessed atrocities, but that he did not personally participate in gassing innocent victims or, in his own horrifying example, beat to death an infant who had been left behind. We have no way of knowing whether these events occurred as he has told them, or if there were other instances in which Mr. Gröning directly participated in acts of murder. But it is indisputable, apparently even to Mr. Gröning himself, that he bears some moral responsibility for the deaths that occurred while he was at Auschwitz.
So is he also guilty of crimes? The camps were not his idea. He didn’t, as far as we know, deliver anyone to the gas chamber. Maybe he even privately came to reject Nazi ideology.
I recognize that my judgment might be clouded by the fact that my mother, who was born in Budapest in 1939, could have been one of Oskar Gröning’s victims, had she and her parents not survived the war under assumed identities. Or because other members of my family did perish in concentration camps, perhaps while Mr. Gröning looked on. Yet I am trained to examine legal questions analytically and, as a purely legal matter, I do not accept Mr. Gröning’s argument, for it finds no support in common concepts of criminal law.
By way of example, every day across the U.S., defendants are indicted for aiding and abetting others in the commission of their crimes, or serving as an accomplice, or participating with others in a criminal enterprise. These concepts are basic, and elastic. If I abhor bank robbery, but I nevertheless drive you to a local bank, where, dressed in a mask with a gun in your hand, you get out and rob the bank, you and I have both committed crimes. If I help route phone calls to a network of drug dealers, but never touch the stuff, I am still a criminal.
And if I strip Holocaust victims on their way to the gas chamber of their last coins, because, as Mr. Gröning testified, “they didn’t need it anymore,” I am guilty. I am an accomplice to murder, a participant in a criminal enterprise. Caught up in activities of others’ design, perhaps, but guilty nonetheless.
Ninety-three-year-old men are not ideal criminal defendants because their frailty lends them a sympathetic sheen. Mr. Gröning, with his walker, hardly resembles the SS officer and money-counter he once was. But there is no statute of limitations on atrocity, and his concession of moral guilt should not confuse anyone into thinking that he does not also share criminal responsibility for what occurred at Auschwitz.
Mr. Suleiman, a lawyer in private practice in Washington, D.C., was a senior official in the Justice Department’s criminal division, 2010-13
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