Can anyone who feels morally guilty also be legally guilty?                       

That is a question that a judge is going to have to deal with at a trial in Germany of a 93-year-9ld man who served as an SS member of the Nazi Death Camp in Auschwitz from 1942 until 1944.                  

Before I get into the role that man had in the death camp that he worked in, I will tell you something about Auschwitz. First of all, there were three major camps consisting of Auschwitz. There was Auschwitz "Number I" (the original camp), Then there was Auschwitz–Birkenau (a combination concentration/extermination camp), "Number II" and Auschwitz Number III–Monowitz (a labor camp to staff of a IG Farben factory), plus 45 satellite camps. The combination of the camps was a huge Nazi complex.                              

The first extermination of prisoners took place in September 1941 at Auschwitz II–Birkenau that then went on to become a major site of the Nazi "Final Solution to the Jewish question". (What to do with the Jews) From early 1942 until late 1944, transport trains under the auspices of Adolf Eichmann delivered Jews to the camp's gas chambers from all over German-occupied Europe, where they were killed with the pesticide Zyklon B. At least 1.1 million prisoners were gassed at Auschwitz of which approximately 90 percent of them were Jews who had been brought by trainloads from all over Europe. One in six Jews killed in the Holocaust died at the camp. Other prisoners deported to Auschwitz included 150,000 Poles, 23,000 Romani and Sinti, 15,000 Soviet prisoners of war, 400 Jehovah's Witnesses, homosexuals, and tens of thousands of other people of diverse nationalities. Many of those not killed in the gas chambers died of starvation, forced labor, infectious diseases, individual executions, and medical experiments.       

In the course of the war, the camp was staffed by 6,500 members of the German Schutzstaffel (SS), of which approximately 15 percent of them were later convicted of war crimes.

This brings us to 93-year old Oskar Groening who was a member of the SS working at Auschwitz-Birkenau, the extermination camp. No, he didn`t pour the gas into the gas chamber, he didn’t shove the victims into the gas chamber, he didn’t march them to the gas chamber. If fact he didn’t have any direct contact with the victims at all who were gassed. He was a bookkeeper in the camp. His responsibilities included counting and sorting the money stolen from the murdered prisoners, along with guarding other prisoner’s belongings in the camp before they could be plundered by SS guards.

Now I think I know what you are thinking. Groening was no different than a bookkeeper who works for a drug cartel. That being as it is, both should be punished. But should they be punished for murder? That is the kind of question facing Groening’s trial judge. 

What kind of man was Groening during those horrible war years? Gröning states that his childhood was one of "discipline, obedience and authority". Gröning was fascinated by military uniforms, and one of his earliest memories is of looking at photos of his grandfather, who served in an elite regiment of the Duchy of Brunswick, on his horse and playing his trumpet. He joined the Scharnhorst, the Stahlhelm's youth organization as a small boy in the 1930s, and later the Hitler Youth when the Nazis came to power in 1933. Influenced by his family's values, he felt that Nazism was advantageous to Germany and believed that the Nazis "were the people who wanted the best for Germany and who did something about it." He participated in the burning of books written by Jews and other authors that the Nazis considered degenerate in the belief that he was helping Germany free itself from an alien culture. He also considered that National Socialism was having a positive effect on the economy that brought about lower unemployment and brought in the true value of the German Mark (money).  Gröning left school with high marks and began training as a bank clerk when he was 17, but war was declared shortly after he started employment so he was one of eight of the twenty clerks in the bank who were immediately conscripted into the army.

Gröning worked as a bookkeeper for a year in the Army until 1942, when the SS ordered that desk jobs would be reserved for injured veterans, and that fit members in administrative roles were to be subjected to more challenging duties. Gröning and about 22 of his colleagues travelled to Berlin where they reported to one of the SS economic offices. They were then given a lecture by several high-ranking officers who reminded them of the oath of loyalty they took, which they could prove by doing a difficult task. The task was top secret so subsequently Gröning and his comrades had to sign a declaration that they would not disclose what they saw or did to their family or friends, or people not in their unit. Once signing was concluded, they were split into smaller groups and taken to various Berlin stations where they boarded a train in the direction of Katowice with orders to report to the commandant of Auschwitz, a place Gröning had not heard of before.

Upon arrival at the main camp, they were assigned bunks in the SS barracks, warmly greeted by fellow SS men and provided with food. Gröning was surprised at the myriad of food items available in addition to their basic SS rations. The new arrivals were curious about what function Auschwitz served. They were told that they should find out for themselves. They were told that Auschwitz was a special kind of concentration camp. Immediately someone opened the door and shouted "Transport!"  Suddenly three or four of the regular SS men to left the room.

The next day, Gröning and the other arrivals reported to the central SS administrative building and were asked about their backgrounds before the war. One of the officers said Gröning's bank clerk skills would be useful, and took him to the barracks where the prisoners' money was kept. Gröning was told that when prisoners were registered into the camp, their money was stored there and later returned to them when they left the camp to go home. It soon became clear to him that Auschwitz was not a normal internment camp with above average SS rations, but instead the camp served an additional function. Gröning was informed that money taken from Jews was actually not returned to them. When he enquired further, his colleagues confirmed that the Jews were being exterminated and this had included the transport of Jews that arrived the previous night.

There were a great many Germans who were shocked and dismayed when they learned what was really happening in such camps. No doubt this young man was equally shocked and dismayed but there was nothing he could have done about it. He was a member of the SS and was sworn to secrecy. If he had breached that secrecy, he would have probably been executed. You have to appreciate the realization that the Nazis created an era of fear throughout all of Europe. They gave no mercy to anyone who didn’t obey orders or betrayed their oath.  

Gröning while testifying at his trial told of an atrocity he witnessed one night in December 1942. Gröning said that he was rousted from bed to help hunt down fleeing prisoners. In the process of searching for them, he saw prisoners being herded into a farmhouse and an SS superior pouring deadly gas out of a can into an opening in the otherwise sealed house.  The screams of the prisoners inside grew louder and more desperate but after a short time, they became quieter and then the screams stopped completely.

  

Was he guilty of murder because he helped hunt down the escapees? I don’t think so. It was his job. Back in 1957 when I was a senior supervisor in a correctional institution, three men escaped from our minimum security prison so a number of us began looking for them. We even stopped a train in our search for them. We caught them. Now suppose one of the guards shot them to death after they surrendered and did this out of our sight. Would the rest of us be charged with murder? Of course not.

Gröning told the court that in November 1942, a crying baby was found amid trash discarded by arriving prisoners. The baby had evidently been abandoned by its mother in hopes she would then be chosen for a work crew and not be sent directly to the gas chamber. A fellow SS member, angered by the cries, beat the infant to death. Gröning said that he complained to a superior but no action was taken against the other fellow SS member.   

If we saw something like what Gröning saw in Auschwitz in our Westernized countries nowadays, we would go the press. Who could he go to complain to if his complaint was already ignored by one of his superiors?

Groening’s case not only revives searing questions about individual guilt for Nazi crimes but it also highlights seventy years of legal inaction over SS crimes in Auschwitz, where an estimated 1.1 million people were murdered. Although 6,500 members of the SS worked at the camp, only 15% of them who worked in that camp had been arrested, tried and convicted of war crimes. For seven decades before Groening’s trial, prosecutors in Germany had declined to charge anyone else with complicity in the Holocaust. That is because almost all of them are now deceased. 

The German authorities have now chosen a 93-year-old former bookkeeper to punish so that Germany can state officially that they still care about what happened to the victims at Auschwitz. We know that the vast majority of the people in Germany who had nothing to do with the atrocities of the Nazis care what happened to so many victims of Nazism. They don’t need a show trial so that the nation can still say, “We care.” The tardiness of the case against Groening, a widower who lives in a small town in northern Germany, will do nothing to reduce the feeling of guilt that many decent Germans still have that is haunting them. 

How essential is the complex emotion of morality to guilt? Guilt feelings are warranted if anyone knows that he or she has acted morally wrong. However this case against Groening hinges on whether he is not only morally feeling responsible but is also personally criminally responsible for what happened at Auschwitz.

It could be said that it would be immoral if someone didn’t have feelings of moral guilt after realizing that he or she might have acted morally wrong.  Only someone of bad character would not have such feelings.

In law, to prove the existence of the guilt of a perpetrator of a crime, two things must be established—criminal intent and the criminal act. 

A police officer who finds himself having to shoot someone who is attacking him with deadly force may feel morally wrong because he ended someone’s life but at the same time, he couldn’t be convicted of  murder because there was no criminal intent and thusly, there was no criminal act even though the act of killing the man as self defence existed.

All decent adults are susceptible to having guilt feelings for having to do something they didn’t want to do. Groening wanted to join the SS to better himself. The prosecutor will have great difficulty in his attempt at proving that Groening joined the SS to murder helpless victims in an extermination camp. Psychopaths such as the SS member who murdered the baby in front of Groening are fiends who, among other things, have no such moral sense and are not susceptible to feeling any form of guilt for their horrible deeds. The term morally wrong should not always be interpreted as also meaning legally wrong.

If Groening feels any guilt for having worked in that camp, (and I believe that he does) that guilt came after he realized what was really happening in that camp. It wouldn’t matter if he was a cook in the camp or a bookkeeper in the camp, he still would feel some form of moral guilt if he is a decent man. That is because he was a minor cog in the rhetorical machine that operated the camp. The proof of his feelings of moral guilt was established when he went on a BBC show years ago and told the listeners what he saw. He knew that what was going in that camp was morally wrong according to the moral standards of society but as I said earlier, there wasn’t anything he could do to stop it.

As I implied earlier, there is a vast difference between feeling morally guilty of an act and being legally guilty of an act. But what was Groening’s act? He worked in the camp as a bookkeeper. He didn’t decide who was to die. He simply kept a record of the victim’s money and guarded the money from thieving hands.

The Supreme Court of Canada in a ruling in 2001 said in part; “Although  moral  involuntariness does not negate the  criminal act or criminal defence of an offence, it is a principle which, like physical involuntariness, deserves protection under s. 7 of the Charter.  It is a principle of fundamental justice that only voluntary conduct such as behavior that is the product of a free will and controlled body, unhindered by external constraints that should attract the penalty and stigma of criminal liability.  Depriving a person of liberty and branding him or her with the stigma of criminal liability would infringe the principles of fundamental justice if the person did not have any realistic choice.” unquote

In my respectful opinion, I think the above should apply in Groening’s case. His presence in the death camp after he learned what it really did to the victims in that camp was clearly involuntary on his part but there was nothing he could do to get transferred out of the camp. Therefore, he should not be convicted of participating in the murder of so many of the camp prisoners when his role in the camp was merely that of a bookkeeper.

There is no doubt in my mind that the Germans and everyone else should never forget what happened in that death camp and bringing Groening to trial will remind those listening to him and others as to how horrible it was in that camp. However, punishing him just to get that message out in my opinion is morally wrong and probably also legally wrong.

As soon as I learn what the verdict is, I will UPDATE this article at the bottom of this article.