Justice

and the Unjustifiable: A Case for Restorative Justice in the

Delayed Prosecution of War Crimes
TJ Briggs

Abstract: This paper examines whether or not there is purpose in criminal prosecution
decades after the fact. It recognizes the importance in trials, even after more than fifty
years, but considers that prison sentences for war criminals who are now seniors do not
serve the interest of justice. Focusing on the case of Oskar Gröning, tried in Germany
thanks to the 2011 precedent from the Demjanjuk verdict, this paper looks at the
response of holocaust victims to what will likely be the last of the Nazi trials. Decades
after the atrocity of the holocaust, victims and their families recognize Germany’s failure
to prosecute many of those responsible, and are finally finding voices in these new trials.
However, there can be no real justice for these crimes after so many years. This paper
argues that restorative justice measures can provide more value and closure to victims
than prison sentences can, when justice is delayed for many years.

Table of Contents
A. Introduction .............................................................................................................................................................. 3
B. Oskar Gröning .......................................................................................................................................................... 4
C. The Demjanjuk Precedent ................................................................................................................................... 6
D. Gröning’s Sentence ................................................................................................................................................ 7
E. The Purpose of the Trial ..................................................................................................................................... 11
F. Victims’ Responses to the Trial and Sentence ........................................................................................... 18
G. Restorative Justice: A Possible Supplement to the Inadequacies of Late Stage Prosecution ... 23
H. Conclusion .............................................................................................................................................................. 27

2
A. Introduction

More than seventy years after the end of World War II, the last vestiges of the Nazi trials

continue in Germany. The first of these was technically the trial of John Demjanjuk in

2011, though he died before his appeal process was completed.1 The first to make it

through all the appeals and become real binding precedent (instead of just guiding

precedent) is that of Oskar Gröning, the so-called “Bookkeeper of Auschwitz.” Gröning’s

trial, which ended in 2015, set the stage for more like him to be called before the courts

in Germany, in a very late stage effort to make up for the fact that so many Nazis

escaped prosecution.

But whose justice is it, putting nonagenarians in prison? Under German law, they may be

found unfit to even serve their sentences. If they become terminally ill in prison, they

are sent home. This paper makes no judgment on the German prison system’s

somewhat humanitarian approach to prisoners. However, after the atrocity of the

holocaust, is this approach really justice for the victims? I argue that it is not. There is

great purpose in criminal prosecutions for Nazis, and Nazis of any age deserve no

sympathy for finally being taken to court. The people who did not actively kill others in

death camps were vital to the camps’ functioning, and as such, are undeniably guilty.

These late stage trials bring the crimes of the “every man” to light, and are a step that

1
Jeremy Armstrong, 'Book-keeper of Auschwitz' Oskar Gröning unlikely to serve a single day behind bars
due to ill health, The Mirror, July 15, 2015, https://www.mirror.co.uk/news/world-news/book-keeper-
auschwitz-oskar-Gröning-unlikely-6074347.

3
Germany has taken to make up for how many Nazis have escaped justice since the end

of WWII. German law allows victims to join as co-plaintiffs in these new trials, which

gives victims a way to confront Auschwitz workers and tell their own stories. However,

trials are structured, they offer no control to victims, and paltry sentences for people

who already essentially got away with their crimes are not enough. I propose that

restorative justice measures be taken to supplement the trials, allowing victims to find

resolution on their own terms.

After so many decades have passed, there cannot really be any “justice” for the horrors

of the holocaust. It is likely that there never could have been. But in considering

restorative justice alongside public trials, perhaps delayed justice can have some

meaning for survivors and their families.

B. Oskar Gröning

Oskar Gröning was born in 1921 in Lower Saxony, Germany. At age 19, he joined the

Hitler Youth, then went on to the Waffen SS. He spent two years working at Auschwitz,

beginning in 1942.2 For most of his life, Gröning was silent about what had gone on

there. But he spoke on a documentary in 2005, wanting to speak against holocaust

deniers. He said, “I saw the gas chambers, I saw the crematoria. [ . . . ] I was on the ramp

when the selections [for the gas chambers] took place.” 3 He spoke frankly of the

2
'Auschwitz book-keeper' Oskar Gröning sentenced to four years, BBC, July 15, 2015,
http://www.bbc.com/news/world-europe-33533264.
3
Id.

4
atrocities committed at Auschwitz, saying, “We were convinced by what we had been

told that we had been betrayed by the entire world and there was a great conspiracy of

the Jews against us. The children were not the enemy at that moment, but the enemy

was the blood inside them. The enemy was them growing up to be a Jew. Because of

that, we killed them as well.”4 At his trial, he admitted “moral guilt” (though he said he

never personally killed anyone) and said, “only God can forgive me.”5

Gröning was charged specifically with “complicity in mass murder for his role in the

deaths of 300,000 Hungarian Jews during a 48-day period in the summer of 1944 when

he was on duty.”6 The presiding judge, Franz Kompisch, sentenced him to four years in

prison – six months longer than the prosecution had asked for.7 The judge did not

believe that there was only moral guilt involved in Gröning’s complicity.

“You said that you see moral guilt, that you were a small cog in the Nazi

machine,” he told him. “But actually you had complicity in mass murder

which was carried out by people like you thoroughly and mercilessly. You

said were brought up in a house that was loyal to the ideals of the Kaiser,

but such an upbringing did not mean you had to take the path to

Auschwitz. And after the war, for 70 years, you denied to yourself what

had taken place there. Memories can make life nice. Forgetting can make

4
Armstrong.
5
Id.
6
Id.
7
Id.

5
 life bearable.”8

C. The Demjanjuk Precedent

The Demjanjuk case that made Gröning’s conviction possible came about when a court

found John Demjanjuk, a retired autoworker deported from Ohio, guilty as an accessory

“in the murder of 28,000 Jews at the extermination camp Sobibor during the period of

his guard service”9 without evidence that he was personally responsible for murdering

anyone. After that, German law allowed that service at an extermination camp was

enough to make someone criminally liable.10 Previously, the German courts had not

tried most Nazi camp workers for genocide, opting instead to use the German penal

code to treat their actions like regular criminal murder.11 This left a high bar to clear to

get a conviction, as anyone charged with murder at the camps had to be proven

“personally guilty of killings.” 12 One historian calls the Demjanjuk precedent “an

incredible legal breakthrough,” and refers to it as a case in which “[the court system]

finally created a prosecutorial approach that got the logic of genocide down: if you were

working in a factory of death, that made you an accessory to murder because your job

8
Id.
9
Lee A Spielman, Germany's Failures in Bringing Nazi Murderers to Justice; Outside Counsel, New York L.
J. (2015), https://advance.lexis.com/document?crid=dd8edfd8-3795-41f6-a90a-
1333fa3d78fb&pddocfullpath=%2Fshared%2Fdocument%2Flegalnews%2Furn%3AcontentItem%3A5GS6-
R4X1-DY35-F0N7-00000-00&pdcontentcomponentid=8205&pdmfid=1000516&pdisurlapi=true.
10
Id.
11
Eliza Gray, More than 70 years later, the prosecution of a 94-year-old former SS guard renews questions
about how to assign blame for the Holocaust, Time, http://time.com/nazi-trials/.
12
Id.

6
was to facilitate the killing of human beings.”13

Though the West German justice system likely made a “cardinal mistake” (according to

historian and Nazi prosecution expert Edith Raim), they did bring some to justice in the

mid 1960s.14 During those trials, 22 Auschwitz personnel were tried, with only 17 found

guilty of any charge, and only 6 of those receiving a life sentence.15 Experts agree that a

law addressing genocide should have been implemented, instead of using the regular

penal code, but that still has not happened; the best thing the courts have now to try

the few Nazis that remain alive is the Demjanjuk — and now Gröning — precedent.16

D. Gröning’s Sentence

Gröning’s trial, which in itself set a precedent, was often a grim reminder of what

Auschwitz was like — and of the terrifying ideology that the Nazis pushed. In his

testimony, Gröning himself confessed to seeing another SS officer “grab a crying baby

and slam its head against a truck until it was quiet.”17 He expressed, at trial, that he had

been shocked by the other’s behavior, but followed up his shock by saying, “I don’t know

what else I could have expected the guard to do with the baby. I suppose he could have

13
Id.
14
Id.
15
Id.
16
Id.
17
Ted Thornhill, 'He bashed the baby against iron bars until it was quiet': Shocking testimony of
'bookkeeper of Auschwitz' who told court he saw an SS officer senselessly batter a child to death, Daily
Mail, April 22, 2015, http://www.dailymail.co.uk/news/article-3050267/Shocking-testimony-bookkeeper-
Auschwitz-Oskar-Gröning-told-court-saw-SS-officer-senselessly-batter-baby-death.html.

7
shot it, though.”18 This “casual acceptance” of the brutality of Auschwitz’s machinations,

more than half a century later, was a clear expression that people like Gröning, who did

not directly murder anyone, were ideologically as much a part of the camp’s success as

anyone else.

Gröning first spoke about Auschwitz in 2005, in a documentary and in the press, and his

statements then showed a man who had fully believed in Hitler’s anti-Semitism and

demonizing of Jews. He told Der Spiegel, a German magazine, “If you are convinced that

the destruction of Judaism is necessary, then it no longer matters how the killing takes

place.”19 Though Gröning claimed at trial that he told the other officer that the murder

of the baby was not right, and said he asked for a transfer out of Auschwitz,20 he did not

actually disagree with what Hitler and the Nazis were doing. The prosecution in his case

argued that not only was Gröning aware of what was going on, he was part of what

made it possible for a place like Auschwitz to exist. His actions in taking valuables off of

prisoners at the camp and forwarding them to Berlin “made it possible for the Nazis not

only to continue but to profit from mass murder.”21

In 2015, at the conclusion of his trial, presiding judge Franz Kompisch told Gröning he

had “willingly taken a ‘safe desk job’ in a system that was ‘inhumane and all but

18
Matthew Schofield, Auschwitz guard offers Germans something rare: A Nazi who admits what he
did, McClatchy DC Bureau, April 23, 2015, http://www.mcclatchydc.com/news/nation-
world/world/article24783544.html.
19
Thornhill.
20
Id.
21
Schofield.

8
unbearable for the human psyche,’” finding him guilty in the murder of Hungarian

Jews.22 The judge did not accept Gröning’s claims of asking to be transferred out of

Auschwitz as a valid defense, saying that “Auschwitz was kept going by people like him

who continued their duties there.”23 “The prosecution had asked for three and a half

years, but Kompisch sentenced Gröning to four.24

Gröning was found guilty of "aiding and abetting" in the murder of 300,000 Hungarian

Jews specifically between 16 May 1944 and 11 July 1944.25 (Others were murdered at

Auschwitz, but these deaths are the ones Gröning was charged with aiding and

abetting.) Under German law, “aiding and abetting is generally interpreted to mean any

act that objectively promotes or facilitates the successful commission of the crime by

the principal with no causal link of any act of assistance needing to be specifically

established for the crime committed.”26 The court found that he was guilty because he

“knowingly assisted the perpetrator in word and deed to commit the felony or

misdemeanor” by working in the camp while knowing the camp's purpose, and knowing

that murders were taking place there.27 Gröning's ramp duties specifically showed that

he helped the camp keep up a facade so that the victims who were being herded in

22
‘Auschwitz Book-keeper’.
23
Armstrong.
24
Id.
25
Landgericht (Regional Court) Lüneburg 4, Gro_ße Strafkammer (hereinafter ‘LG Lüneburg Judgment’),
27 Ks 1191 Js 98402/13 (9/14), available online at http://www.landgericht-
lueneburg.niedersachsen.de/portal/live.php?navigation_id.13822&article_id.136918&_psmand.56.
Certified English translation available at
https://auschwitztrial.files.wordpress.com/2016/05/lucc88neburg-verdict.pdf (visited April 4, 2018).
26
Id, at 39.
27
Id.

9
would not fully be aware of what they were headed towards. His armed presence on the

ramp served as “part of the menacing backdrop, which was intended to quash any

thoughts of resistance or flight and thus also facilitating and expediting the subsequent

killing process in the gas chambers.”28 His actions in cataloguing valuables, money, and

possessions taken from prisoners and sending much of it off to Berlin aided the camp's

functioning by providing financial support.29 The court declined to find Gröning guilty of

being an accomplice, as he did not participate directly in the killings and showed no

“interest” or “desire” to “control the commission of the crime.”30 The general sentence

mandated under German law was “three to fifteen years imprisonment,” according to

the court opinion.31 The court found no mitigating circumstances to lessen a possible

sentence.32 The court did find that there were several factors in Gröning's favor: he had

not previously been convicted of a crime, he used “brutal candor” in describing his

actions at the camp, and he did not deny those actions.33The court remarked that this

candor “significantly distinguishes him from all of the other SS men who during their

lives have either remained silent, disputed or sugarcoated the crimes they

committed.”34 The court also found that Gröning showed himself to be “particularly

impacted by the testimony of [the victims serving as co-plaintiffs].”35 The court also

considered that the crimes were committed many years ago (showing, therefore, that

28
Id.
29
Id.
30
Id, at 40.
31
Id, at 42.
32
Id.
33
Id, at 44.
34
Id.
35
Id.

10
there was no need for a preventive measure), and that Gröning, now an old and

somewhat feeble man, could be vulnerable in prison. Interestingly, the court also had to

consider that he must have “the opportunity – not the assurance – to be released from

prison during his lifetime” as required under Article I of the German Constitution.36 The

court found that four years was an “appropriate” sentence under the facts and

circumstances.37 The court had no discussion of the effects of delayed justice, or of the

failure of the German court system as a whole to bring former Nazis to justice over the

past seventy years, outside of a brief discussion of the fact that Gröning himself had

both been investigated and had given testimony against other SS members in the

1970s.38

Christoph Heubner, vice president of the International Auschwitz Committee, criticized

the sentence itself, saying, “The level of the requested sentence is not even symbolic. It

must leave a bitter taste in the mouths of survivors.”39

E. The Purpose of the Trial

Under German law, various survivors (or their families) were allowed to join as plaintiffs

in the case against Gröning. Victims took various views on the purpose of the trial, but

36
Id.
37
Id.
38
Id.
39
Lawyers criticize sentence proposal in 'bookkeeper of Auschwitz' case, DW.com,
http://www.dw.com/en/lawyers-criticize-sentence-proposal-in-bookkeeper-of-auschwitz-case/a-
18571758.

11
all of them agreed on one thing: 70 years after the fact, trying Gröning still mattered to

them, and should matter to the world at large. Even in the Demjanjuk case, one then 84-

year-old survivor, David van Huiden, said “It’s never too late because the crimes

committed are so overwhelmingly heavy that even today nobody could understand how

this could happen in a civilized society.”40 As legal scholar Lawrence Douglas says, “The

optics are not brilliant, obviously. [ . . . ] But these new trials are considered symbolically

important, a way to show that a German legal system that struggled for decades to hold

ex-Nazis accountable can finally bring them to justice.”41 For Douglas, and for many

others, “it is better late than never.”42 “[These trials] remind us that this genocide would

never have taken place without these lowly foot soldiers,” says Douglas. “Things can go

wrong in a hurry in countries, and when they do, it is shocking how willing people are to

go along with it.”43

This sentiment, this feeling that there is purpose in charging Nazis decades after the fact,

is pervasive. Andreas Eichmueller, from Munich’s Nazi documentation center, said,

“From today’s point of view and in terms of victims’ need for justice, there has certainly

been (a failure of justice).”44 He admits that it would have been “unimaginable” to put

every single Nazi involved in the operation of all the camps — a total of tens of

40
Madeline Chambers, Germany’s Top Nazi Hunter To Keep Up Chase for Another Decade, Reuters, March
17, 2016, https://www.reuters.com/article/us-germany-nazis/germanys-top-nazi-hunter-to-keep-up-
chase-for-another-decade-idUSKCN0WI1XC.
41
Eliza Gray, More than 70 years later, the prosecution of a 94-year-old former SS guard renews questions
about how to assign blame for the Holocaust, Time, http://time.com/nazi-trials/.
42
Id.
43
Id.
44
Chambers.

12
thousands of people — on trial. Despite past failures of the justice system, however,

Berlin’s “top Nazi hunter” Jens Rommell is undeterred. “It is unsatisfactory that so many

were not pursued, but today I have to pursue those who I can,” he said, indicating that

the only real end to Nazi trials will come when the last of them are either brought to

justice or dead.45 Rommel also spoke about another case that came after Gröning’s,

further recognizing the symbolic importance of these late-stage Nazi trials. “We are

giving the chance to the accused and the witnesses to tell us their stories—and not just

to the media, they are telling them in a courtroom,” he said.46

Victims have mixed ideas on Gröning himself. Leon Schwartzbaum, who was 22 when he

went into Auschwitz, and is now the same age as Gröning, said he could not forgive

Gröning for what he had done. Eva Kor, on the other hand, did find it in herself to

forgive, and a tweet went around showing her shaking his hand in 2015 during the

trial.47 Survivor Susan Pollack called him brave for admitting that he was at Auschwitz,

but specified that her “bravery” comment was meant in comparison with other SS

members. She also questioned why the many people who had worked at Auschwitz had

not been talked about or questioned sooner, and said that she realized it took “young,

able-bodied, presumably ambitious” men like Gröning to make Auschwitz work.48 She

did not come outright and say she blamed him, but she also did not offer forgiveness or

45
Id.
46
Eliza Gray, More than 70 years later, the prosecution of a 94-year-old former SS guard renews questions
about how to assign blame for the Holocaust, Time, http://time.com/nazi-trials/.
47
'Auschwitz book-keeper' Oskar Gröning sentenced to four years, BBC, July 15, 2015,
http://www.bbc.com/news/world-europe-33533264.
48
Id.

13
any sort of absolution.49 She went on to say that the length of the sentence was not

important, because it does not matter now, but the trial itself mattered. “What

difference does it make now? But putting him on trial was vital because every

generation has to learn about the Holocaust.”50

Several holocaust survivors submitted a statement saying that their pain could never be

alleviated, regardless of trials or what the accused said.51 "But it gives us satisfaction

that now the perpetrators cannot evade prosecution as long as they live," the statement

said.52

Several present at the trial said that it was “not important” that Gröning serve a

sentence, and that the conviction was “symbolic, a belated recognition of his role in the

Nazi extermination of six million Jews.”53 Efraim Zuroff, a Nazi hunter who works at the

Simon Weisenthal Centre in Jerusalem, said, “This is justice at long last. You don’t have

to pull the trigger to have been an accomplice to the annihilation launched by Nazi

Germany. He does bear his share of the blame. The issue is not his age. I do not have

any sympathy – some of his victims were older than he is today.”54 Others share Zuroff’s

feelings. The Chief Executive of the Holocaust Educational Trust, Karen Pollock, “believes

the case sends an unequivocal message that he was an accessory to crimes perpetrated

49
Id.
50
Armstrong.
51
Id.
52
‘Auschwitz book-keeper’
53
Armstrong.
54
Id.

14
by the Nazis, and should be held legally accountable.” 55 World Jewish Congress

President Ronald Lauder remarked, “Albeit belatedly, justice has been done.”56

An editorial in the German paper Seuddeutsche Zeitung said, “It’s not about sending

these old folk to prison.”57 Justin Sonder, an Auschwitz survivor who testified in the trial

of Reinhard Hanning, another nonagenarian Auschwitz defendant, said the sentence

“plays no role.”58

Many students attended Gröning’s trial in Lüneburg. “Today it’s the witness accounts

that really matters [sic],” said historian Daniel Bonnard, professor at Marburg University.

Id. He said that it was a case of “watching living history. [ . . . ] [for students watching,

the holocaust is] as much in the past as ancient Egypt.”59 Seeing Gröning’s trial took

Auschwitz from the abstract into the concrete “living hell” that it was.60

Gröning’s own lawyer, Hans Holtermann, admits to seeing value in the trial, feeling that

the witnesses had a right to be heard. “Although this did not bring out new facts as

Gröning had already made his statement, it was a good decision by the court to give

them a chance to speak. This is one of the last such trials and it was important for the

55
Id.
56
Id.
57
Coralie Febvre, Germany’s twilight Nazi trials about more than justice, The Times of Israel, February 27,
2016, https://www.timesofisrael.com/germanys-twilight-nazi-trials-about-more-than-justice/.
58
Id.
59
Id.
60
Id.

15
victims to make such statements at a public hearing.”61 He went on to say, ”We have to

pursue these cases. These have been unique crimes in the history of mankind. For

society and the survivors it might be helpful if we have [something like a truth

commission].”62

Gröning’s sentence, in the end, though longer than asked for, seems a pitiful sort of

justice for the crime he is charged with. His specific charge is as an accessory to the

murder of 300,000 people, a number so high it is hard to imagine – but a number that

falls short of the total that were killed at Auschwitz alone. Nazi hunter Felix Steiner

called the sentence itself “purely symbolic” as something sort of like an apology for

Germany’s failures in bringing Nazis to justice.63 In 70 years, Germany has tried only 100

out of around 7,000 people who served at Auschwitz. Even Gröning himself had been

investigated in the 1970s, though ultimately that investigation had been dropped due to

the evidentiary requirement being too hard to meet.64 Steiner went on to say that

Gröning’s trial should serve as a warning to neo-Nazis and holocaust deniers, and that

“the most important message remains: there is no statute of limitations on genocide or

crimes against humanity.”65

Though overall the importance of Gröning’s trial is acknowledged, and largely agreed

61
Bhavya Dore, How Do You Defend a Nazi? (It Might Not Be As Hard As It Sounds.), The Wire, May 21,
2016, https://thewire.in/36757/how-do-you-defend-a-nazi-it-might-not-be-as-hard-as-it-sounds/.
62
Id.
63
Felix Steiner, Opinion: Symbolic verdict in Auschwitz case, DW.com, July 15, 2015,
http://www.dw.com/en/opinion-symbolic-verdict-in-auschwitz-case/a-18585739.
64
Id.
65
Id.

16
upon, there are those that see less value in the process as a whole. German historian

Michael Wolffsohn had a hard time seeing justice coming from a case when the

defendant was so old. “The trial as such is counterproductive,” he wrote. “A maximum

sentence of six years for the murder of 300,000! It would have been better to just

analyze Gröning’s statement. Justice and law are not always identical.”66 The German

newspaper Sueddeutsche Zeitung also criticized the trial, saying in an editorial, “German

justice, after the court agreed to take this case, should have asked the victims and the

world to be forgiven for having delayed the punishment of the Nazi killers for so long,

and even until a point where punishment barely makes sense.”67 Another paper, the

Stuttgarter Zeitung, said that Gröning’s trial was not about “punishing an old man.”68

“It’s about identifying the most severe injustice, as long as those responsible are still

alive. [ . . . ] That this so far has not happened, as German justice was blind for so long,

does not change the demands of justice.” Pascal Durain, writing for Mittelbayrische

Zeitung, said that Germany had a debt to pay, as did all those who worked in the

camps.69 “Gröning owes the truth to the audience. The court owes him a verdict. The

state of law owes justice to the survivors. And Germany owes all a message that no

perpetrator will get away.”

66
Matthew Schofield, Auschwitz guard offers Germans something rare: A Nazi who admits what he
did, McClatchy DC Bureau, April 23, 2015, http://www.mcclatchydc.com/news/nation-
world/world/article24783544.html.
67
Id.
68
Id.
69
Id.

17
Pascal’s point — and Steiner’s point — may be overlooked in the end, however. Ursula

Haverbeck, notorious in Germany for vehement denial of the Holocaust, attended

Gröning’s initial testimony. Afterward, she said that Gröning had “been turned,” and

viewed him as a traitor.70 Convicted German neo-Nazi Thomas Wulff, before the trial,

called the trial itself “a late, Allied revenge trial” and called Gröning “a victim of his time

and [ . . . ] a victim of the German justice system.”71

Most of those that see little value or purpose in the trial take that stance because of the

delay, or because they see no point in putting very old people in prison. Victims and

historians alike at least recognize the importance of Gröning’s testimony. And, if justice

really listens to the victims, these type of trials have meaning to them, and should likely

be continued. The sentences, however, are far from just when compared with the

number of deaths facilitated in the camps.

F. Victims’ Responses to the Trial and Sentence

Both those in favor of and against the trial have said that it is not really justice. As for

the victims and survivors of Auschwitz, they have mixed reactions to the verdict in

Gröning’s case. Throughout the trial, various outlets interviewed those that had come,

often from all over the world, to join as co-plaintiffs and/or testify against Gröning.

Many of them were also elderly, nearly Gröning’s own age in several cases, and most

70
Id.
71
Id.

18
were survivors of Auschwitz. Those that were not survivors were the close relatives of

those that were, who were either no longer alive or were too infirm to speak for

themselves.

Eva Pusztai Fahidi, who lost 49 family members in the holocaust, travelled from

Budapest to be part of the trial. She told news outlet NTV, “To me this is not about a jail

term for him, but about researching and dealing with the crime. [ . . . ] [O]ne has always

had the feeling that justice has not been served, and so this provides a sense of

satisfaction, to some extent.”72 She also said that, as Gröning admitted to being on the

ramp when many people — largely Hungarian Jews — were brought to the camp, that

he must have been there “witnessing the suffering” and she wanted to “look into his

eyes and see him recognise his guilt.”73

Another survivor, Hedy Bohm, came all the way from Toronto, Canada. She had also lost

many family members in the holocaust.74 “I am so grateful to have been given this

opportunity to come here and testify,” she said. “I don't know if I ever saw him. But he

was there. And there can be no statute of limitations on people who served in such a

place.”75 When the sentence came down, she was disappointed that Gröning had not

apologized during the course of the trial. She did not think that any prison sentence

72
Ted Thornhill, 'He bashed the baby against iron bars until it was quiet': Shocking testimony of
'bookkeeper of Auschwitz' who told court he saw an SS officer senselessly batter a child to death, Daily
Mail, April 22, 2015, http://www.dailymail.co.uk/news/article-3050267/Shocking-testimony-bookkeeper-
Auschwitz-Oskar-Gröning-told-court-saw-SS-officer-senselessly-batter-baby-death.html.
73
Id.
74
Id.
75
Id.

19
could atone for the evils of Auschwitz. “The sentence has no meaning. It's too late

anyway,” she said.76

Bohm was not the only one to travel from Toronto. Judith Kalmann came to represent

her sister, Evika, who had been killed at only six years old. Kalmann, like the others, saw

symbolic justice in the trial — a chance for some recognition for a sister whose shadow

she had felt her whole life.77 She said, “I don't feel resentment or hatred when I think of

Gröning. I believe him when he says he never laid a hand on a Jew. He is unsure himself

of his guilt. He wants to have peace of mind, to justify himself, but he knows there can

be no justification. I will be there for Evika and for all the others who were murdered. I

want to understand. He chose to participate in this crime and participated with

conviction. And now, finally, he must answer for it.” 78 Kalmann said that she felt a

profound sense of loss and survivor’s guilt, and that it had defined her life.79 She saw

herself as less affected than those who had been at the camps themselves, but said, “I

cannot fully express how liberating it feels to have her acknowledged so publicly, and to

be heard on behalf of my father and mother: little people who bore the enormous

weight of history without solace of recognition.”80

Some survivors had not travelled as far, but the importance to them was no less

76
Lawyers criticize sentence proposal in 'bookkeeper of Auschwitz' case.
77
Thornhill.
78
Id.
79
Judith Kalmann, Oskar Gröning trial: Loss of family I never knew, BBC News, April 29, 2015,
http://www.bbc.com/news/world-europe-32493010.
80
Id.

20
significant. Leon Schwartzbaum, who came from Berlin, told DW News, “I was in

Auschwitz for two years. It was important for me. My whole family was killed. It was 30

people, and this is the last trial of an SS man who was in Auschwitz.”81 (As it turned out,

Gröning was not the last of the Auschwitz trials; there are still several going on in

Germany as of 2018, and investigations into others.)

Co-plaintiff György Schwarc’s lawyer, Mehmet Daimagüler, also found no justice in the

sentence, though the lawyer said, “[N]either I nor my client expected justice. We are

happy that this trial took place at all, and my client had the opportunity to tell his

stories, and this was by far more important than the verdict itself. Because we are living

in a time in which people deny the Holocaust, where people especially here in Germany

are trivializing the Holocaust by, for example, counting the number of German victims.”82

In a heartfelt blog post, Esther Altmann found the process numbing. She accompanied

her father, who had joined as a co-plaintiff, from the US. She was not impressed by

Gröning’s emotionless responses to the judge’s questioning. “I felt neither an impulse to

forgive nor any particular desire to see him jailed. Listening to him respond to the

judge’s pointed questions aroused neither empathy or anger but rather a black hole of

profound emptiness and loss,” she wrote.83 She did not really go because she wanted to

81
Ben Knight, 'It was your decision,' judge tells Auschwitz bookkeeper Gröning in one of last Nazi
trials, DW, July 15, 2015, http://www.dw.com/en/it-was-your-decision-judge-tells-auschwitz-bookkeeper-
gr%C3%B6ning-in-one-of-last-nazi-trials/a-18585295.
82
Id.
83
Esther Altmann, From the courtroom: The Gröning trial through a daughter’s eyes, The Times of
Israel (2015), http://blogs.timesofisrael.com/the-Gröning-trial-through-a-daughters-eyes/.

21
see Gröning in jail, and was not even completely sure what she was expecting. “It was

only in the silence of the room as the survivors read their testimonies that I felt a sense

of sanctity and reconciliation.”84 She said that the trial stayed with her long after she

returned to New York.85 If she had any idea of what justice would entail, she did not

write that in her blog post.

Survivor Eva Kor is an outlier when it comes to victims’ attitudes towards Gröning. While

she agreed with the trial’s existence, telling Bild Daily, “To me he is a murderer because

he was part of the system of mass murder. This may be our last chance to get

information on Auschwitz from one of the perpetrators,”86 she found the prosecution’s

sentencing request disappointing.87 She found no value in a 94-year-old man “sitting in

jail,” and suggested that he could “[speak] to students in person or even via Skype about

what happened.”88 She argued that he was guilty, undeniably, but that the German court

should think about “what would provide the greatest value to society.”89 Her thinking

was that in going after the last of the Nazis, the goal should be to prevent anything

similar from happening again.90 Kor, unlike any other survivor I could find in interviews,

84
Id.
85
Id.
86
Thornhill.
87
Eva Kor, What is Eva Kor's reaction to the conclusion of the Oskar Gröning trial? Prosecutors have asked
for a sentence of 3.5 years for the 94-year-old "Accountant of Auschwitz." Is this a just sentence? Does it
make sense? Quora (2015), https://www.quora.com/What-is-Eva-Kors-reaction-to-the-conclusion-of-the-
Oskar-Gröning-trial-Prosecutors-have-asked-for-a-sentence-of-3-5-years-for-the-94-year-old-Accountant-
of-Auschwitz-Is-this-a-just-sentence-Does-it-make-sense/answer/Eva-Kor.
88
Id.
89
Id.
90
Id.

22
professes forgiveness — something other survivors have criticized her for.91

Ultimately, the victims — and the courts — are in agreement about Gröning’s guilt.

However, there is a sense that justice cannot be met with a prison sentence after so

many years. While the victims differ on what should be done, that much comes up again

and again. What is not clear, in the end, is what “justice” would even be after the courts

failed to prosecute Auschwitz workers for over half a century.

G. Restorative Justice: A Possible Supplement to the Inadequacies of Late Stage

Prosecution

What, then, is the answer to justice delayed? 70 years after the Holocaust, in what will

surely be the last of the Nazi trials, victims recognize the importance of the trials and

lament the sentences themselves (or, in some cases, the fact that those sentenced are

too infirm to serve the sentence). The trials themselves, while they cannot directly deter

an atrocity that has already been committed, certainly could serve some future

deterrent purpose. With the Demjanjuk precedent, and Gröning’s trial and sentencing,

Germany is perhaps trying to send a message that war criminals, no matter how small

their contributions, cannot get away. As scholar Jennifer Snyder puts it, “the new war

criminal will not only be the one who ordered and organized the killings, but can also be

91
JTA & AP, Auschwitz survivor: Trial of ex-Nazi guard is ‘satisfaction’ Plaintiff who lost 49 family
members, The Times of Israel, April 29, 2015, https://www.timesofisrael.com/auschwitz-survivor-trial-of-
ex-nazi-guard-is-satisfaction/.

23
the one complicit in the killings-the one who just ‘did his job.’ This shift can potentially

do what has not been done before – provide the deterrent factor that has been missing.

The ‘every man’ can now be pulled into court for war crimes. No longer can he choose to

overlook his moral duty to humankind because he was simply ‘following orders.’ And

only now can the harsh reality of his actions, or lack thereof, finally sink in.”92

One possible path forward is to use restorative justice tactics. That is not to say that

these late stage trials should not take place, of course. The trial processes themselves

hold great meaning for victims, and are a necessary part of Germany’s attempt to

reconcile its past and continue to show no tolerance for Nazis. But restorative justice is

not for the sake of the State, it is for the sake of the victims.

Survivor Eva Kor is a big supporter of restorative justice efforts, having found that

forgiveness was her specific way of dealing with her past as a victim of Josef Mengele

and the Nazi regime. She does not preach forgiveness for everyone, considering her own

forgiveness to be a personal choice, but she does agree with alternatives to things like

prison sentences (as discussed above).

Restorative justice recognizes that crimes cause “harm to people, relationships, and the

community” and that “a just response must address those harms as well as the

92
Jennifer Snyder, A New Definition of War Criminal, 16 Chi.-Kent J. Int'l & Comp. L. 164 (2016).

24
wrongdoing.”93 While the trial environment gives victims some sense of airing their

experiences or confronting those that have harmed them — especially in Germany,

where holocaust victims are able to join as co-plaintiffs in cases like Gröning’s — trials

are not done in a way that gives victims any control over the situation. Restorative

justice can allow victims to feel they have control, and “provides a forum that allows the

victims to communicate openly with their oppressors.”94

Trials and sentencing often do not feel just or feel like they are “enough” for victims.

Even the Nuremberg trials did not provide “cathartic relief” to victims.95 Restorative

justice efforts are not initiated by prosecutors or the State, and they do not (necessarily)

have international governmental motivations. Instead, restorative justice seeks to put

the victims on equal footing, “giving victims the opportunity to face their oppressors

while maintaining control, providing a forum for open dialogue between victims and

their oppressors, and transforming the lives of all individuals involved.” 96 With the

victims being the initiators, they are able to air things that may not be relevant to a

criminal trial. They are also able to easily leave the situation if it is no longer desired or

useful to them, or they become overwhelmed.97 They are not separated by procedure

and by benches and judges and lawyers, as they are in trials. They are meeting their

93
What is Restorative Justice?, CTR. FOR JUSTICE AND RECONCILIATION,
http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-torestorative-
justice/lesson-I -what-is-restorative-justice/ (accessed Apr. 6, 2018).
94
Kaitlyn Pytlak, Vergebung Macht Frei - Forgiveness Liberates: The Need for Restorative Justice in the
Resolution of Holocaust-like Crimes, 32 Ohio St. J. on Disp. Resol. 219, 222 (2017).
95
Id, at 229.
96
Id, at 234.
97
Id.

25
oppressors as humans, which gives “an added dimension of reality.”98

The non-adversarial setting of restorative justice may do more than just serve the

victims and give them a chance to be heard. It can also affect the perpetrators. Just

hearing from someone who was affected by the holocaust may touch the offenders in a

way that nothing else could. This may seem like too little too late (which, of course, the

trials do as well), but consider Eva Kor’s experience. In the early 1990s, Eva went to

speak about her experiences as a holocaust survivor. She was asked to bring a Nazi

doctor with her. Though she found it “a mad request,” 99 she recalled being in a

documentary with one Dr. Hans Münch, who had worked at Auschwitz.100 Dr. Münch

agreed to meet with her. The entire tale is beyond the scope of this paper, but

ultimately, the doctor visited Auschwitz with Eva and signed a statement about what had

happened there, read the testimony allowed, and asked for forgiveness.101 Whether or

not he did or should be forgiven is not the point; rather, if Eva herself had not initiated

contact with him, would he have ever done that? It cannot be said for certain, but he

had not done so before, so it can be surmised that he would not have. Eva and Dr.

Münch both expressed that they were able to come to terms and find peace after many

years, thanks to their meeting — a meeting that Eva initiated and felt she had control

over.102 Of course, there is no easy, one-size-fits-all answer for what justice is for each

victim. But restorative justice, with an approach that is largely up to the victims

98
Id.
99
Id, at 227.
100
Id.
101
Id, at 238.
102
Id.

26
themselves, leaves more room for closure than a trial alone — especially one so many

years after the fact, with a sentence that seems almost a mockery.

Restorative justice efforts cannot and should not replace criminal trials, even at this late

date, but they may provide a way for victims to feel that there is actual justice instead of

paltry prison sentences for nonagenarians who have already gotten away with crimes of

supporting atrocity for seventy years.

H. Conclusion

There can be no tolerance for Nazis of any age, but there can also be no justice for the

horrors that the Nazis perpetrated. Germany’s modern day Nazi trials, like that of Oskar

Gröning, hold meaning for the victims but do not go far enough. Restorative justice is

one way that victims can find some form of reconciliation, and perhaps reach the

perpetrators, even years after the fact. While the trials in Germany continue, the victims

have mixed reactions (aside from generally agreeing that the trials should take place).

Restorative justice used alongside trials may provide more for the victims than paltry

sentences so many years after the end of the holocaust.

27