On April 21st Oskar Gröning, age 93, appeared before a court of law in the German city of Lüneburg. He is charged with being an accessory to the murder of 300,000 Hungarian Jews in the infamous concentration camp of Auschwitz-Birkenau, ran by the Nazi regime during World War Two and where Gröning served as an SS guard.
This trial reopens the discussion on the possibility – and even the utility – of the attempts to mete out retributive justice after the Holocaust, a debate that took place most recently on the case of John Demjanjuk (deported from the United States to Israel in 1986, returned, and then deported again to Germany in 2009).
Beyond the fruitful discussion held since decades between criminal law scholars on the basis and the purpose of punishment, the case of Oskar Gröning presents us with the “problem of German guilt”, famously defined by the philosopher Karl Jaspers in the aftermath of World War Two.
Jaspers defined four kinds of guilt for the acts committed by Germans during that conflict. First, criminal guilt, which rests upon the individual who committed a crime and which must be declared by a court of law. Second, political guilt, which is incumbent upon all the community organized under a certain kind of regime and that is imposed by the victor in a conflict. Third, moral guilt, which can only be assigned to an individual who has breached ethical standards of behavior, and that may only be imposed by the tribunal of one’s own conscience. Finally, metaphysical guilt, or that which is admitted before God by an individual who, having the opportunity to spare someone else from suffering, did nothing and therefore feels remorse for being still alive.
In the case of Oskar Gröning, it may be said that his political guilt was early imposed in history by the victor powers, upon him and all Germans, even if they did not took part in the Nazi regime. Moral guilt has been as well been admitted by Gröning in his judicial statement, whereby he asked the victims for forgiveness. Such a petition, as well as his alleged attempts to be transferred more than once from the camp where the events took place, show that the accused feels a true metaphysical guilt. Therefore, the court of the city of Lüneburg, with criminal competence, has only to ascertain if Gröning has criminal guilt, besides his political, moral and metaphysical guilt.
When determining such criminal guilt the court should take into account that, on the one hand, if great flexibility was given to the judges of Nüremberg in the application of retroactive criminal norms (such as the Statute for the International Military Tribunal of 1945) in order to attain the greater objective of building what David Luban has called a “new international order”, this hardly would be justified by the beginning of the 21st century, when such order is arguably consolidated. That is why the German court will have to abide strictly by the legal norms (domestic or international) in force at the time of the alleged events.
If doing so, on the other hand, the court finds that Gröning acted with criminal guilt, then it should no refrain from declaring him guilty and condemning him to the punishment, unless grave humanitarian concerns make necessary the application of some measure of clemency.
After all, the ancient Roman maxim of “making justice even if the world ends” (fiat justitita pereat mundus), cannot lead us to destroy the new world that was founded from the ashes of World War Two, nor to make us tear down its dome or remove from it the star that should guide all of our decisions in the future: human dignity.