Cornelius Nestler, a lawyer jointly representing 49 of the co-plaintiffs in the trial of the “accountant of Auschwitz,” talks to DW’s Ben Knight about why Oskar Gröning’s conviction still matters today.
Read it in Deutsche Welle
DW: This is nearly the end of the what is probably the last ever Auschwitz trial. Has it gone as you expected?
Cornelius Nestler: Yes, we expect him to be convicted for participating. That was clear from the beginning, and the evidence showed that he participated, and he admitted it. Therefore he is going to be convicted [on Wednesday].
The maximum sentence for accessory to murder in Germany is 15 years, but the prosecution only asked for a three-and-a-half year sentence. Why did you not ask for the maximum sentence?
That would mean that we think that all the factors that you must consider in sentencing only speak for the highest possible sentence. This is obviously not the case. As the defense rightly said, this was because of the failure of the justice system to come forward with an indictment for nearly 40 years [Gröning was originally investigated by state prosecutors in 1978]. We have a very old defendant, and it is not his fault that it took so long and that he was put in this position so late. That is one of the major mitigating circumstances.
And there are more: he was not in a leading position in Auschwitz, he was one of the only defendants in such cases who from the beginning admitted what he had done, and in the end, as you heard today, he came forward with a statement that it was absolutely wrong to have been part of this murder machine, that he regrets it, that he thinks he should have acted differently. As far as I know, never in the history of these cases in the German justice system has any of the defendants said something like that.
In the end, what’s important for our clients is that the trial happened, and that he’s going to be convicted. But the sentence doesn’t mean so much to them. The sentence doesn’t help them with the lifelong suffering that they had.
Did you expect Gröning to make that statement today?
We hoped for it, and it seemed like he wanted to do something like that. He didn’t do it before in a good way, and we criticized him for that, and obviously he learned something.
What did he do on Tuesday that he did not do before?
He didn’t say in a real, clear way that he felt responsible and guilty for what he did. He never said that in that way.
The past failures of the German justice system to deal with Nazi crimes kept coming up in the closing statements, both of the defense and the prosecution. Will the verdict you expect on Wednesday correct that?
If in the end the German justice system takes the right path, it doesn’t excuse all the failures of the other prosecutors, who until 2013 didn’t make the right decisions. The case was pending with a prosecutor in Frankfurt just a year before this prosecutor [in Lüneburg] took the case, and he said, “Oh, it’s so complicated, there are open legal issues, we cannot do this.” This trial proved that was completely wrong. It was not complicated. It was relatively easy. It could have been done in 1980.
What do you think of the dramatic intervention during the trial of the co-plaintiff and Holocaust survivor Eva Kor, who publicly forgave Gröning?
There are three problems with that. First of all, forgiving someone is a very personal act. But she didn’t do it in a personal way. She made a public show out of it. Number two is, she cannot forgive him for what he did to all the other people, and this indictment is not about what he did to her – he didn’t do anything to her; she might forgive Josef Mengele for being the doctor who treated her, but she cannot forgive Gröning for killing her relatives, or for participating in killing 300,000 people. And my third point is that if you are a co-plaintiff, which means you support the indictment, you should not use that situation to forgive the defendant. You either want him to be indicted, or you want to forgive him. It’s either/or. And all our clients think the same way. They found it disgusting, really disgusting, what she did.
Will any of the co-plaintiffs be at the verdict?
Probably not. It’s too fast. These are all old people, which is another consequence of the failure of the criminal justice system. Now it’s very hard for them to attend the trial.
Do you think that’s a shame?
Some of them would have come if the verdict had been announced next week, so for a few of our clients it is not good that the court decided to do it [on Wednesday], because it actually takes away their right to be here when the verdict is given. But this is only a very small number of our clients.
One of the lawyers today, Mehmet Daimagüler, brought up the parallel with trial of the neo-Nazi terror group National Socialist Underground in Munich, and other racist crimes in Germany today. He said both trials had to do with the failures of the state – the failure to punish criminals and the failure to protect innocent people. Do you see those parallels?
These are two failures, but they concern different reasons and different periods of time. But the parallel could be that there is still not enough awareness among the German authorities of the importance of really fighting crimes of anti-Semitism. If a prosecutor in 2005 dismisses a case with the argument that the SS on the ramp were actually not necessary there, and therefore there was no causation, then this shows a lack of understanding of what actually happened in Auschwitz – you can only say that if you are trying to get rid of these cases. You could connect that with the failure of the investigating authorities to have a clear view that there could be something like the NSU in Germany these days.
A blindness?
Yes, some kind of blindness, though a different kind of blindness – I would not really compare that.
Cornelius Nestler is a lawyer and law professor at the University of Cologne. He also represented co-plaintiffs at the trial of former concentration camp guard John Demjanjuk in Munich in 2011.
Interview with attorney Cornelius Nestler: ‘Gröning is going to be convicted’
Cornelius Nestler, a lawyer jointly representing 49 of the co-plaintiffs in the trial of the “accountant of Auschwitz,” talks to DW’s Ben Knight about why Oskar Gröning’s conviction still matters today.
Read it in Deutsche Welle
DW: This is nearly the end of the what is probably the last ever Auschwitz trial. Has it gone as you expected?
Cornelius Nestler: Yes, we expect him to be convicted for participating. That was clear from the beginning, and the evidence showed that he participated, and he admitted it. Therefore he is going to be convicted [on Wednesday].
The maximum sentence for accessory to murder in Germany is 15 years, but the prosecution only asked for a three-and-a-half year sentence. Why did you not ask for the maximum sentence?
That would mean that we think that all the factors that you must consider in sentencing only speak for the highest possible sentence. This is obviously not the case. As the defense rightly said, this was because of the failure of the justice system to come forward with an indictment for nearly 40 years [Gröning was originally investigated by state prosecutors in 1978]. We have a very old defendant, and it is not his fault that it took so long and that he was put in this position so late. That is one of the major mitigating circumstances.
And there are more: he was not in a leading position in Auschwitz, he was one of the only defendants in such cases who from the beginning admitted what he had done, and in the end, as you heard today, he came forward with a statement that it was absolutely wrong to have been part of this murder machine, that he regrets it, that he thinks he should have acted differently. As far as I know, never in the history of these cases in the German justice system has any of the defendants said something like that.
In the end, what’s important for our clients is that the trial happened, and that he’s going to be convicted. But the sentence doesn’t mean so much to them. The sentence doesn’t help them with the lifelong suffering that they had.
Did you expect Gröning to make that statement today?
We hoped for it, and it seemed like he wanted to do something like that. He didn’t do it before in a good way, and we criticized him for that, and obviously he learned something.
What did he do on Tuesday that he did not do before?
He didn’t say in a real, clear way that he felt responsible and guilty for what he did. He never said that in that way.
The past failures of the German justice system to deal with Nazi crimes kept coming up in the closing statements, both of the defense and the prosecution. Will the verdict you expect on Wednesday correct that?
If in the end the German justice system takes the right path, it doesn’t excuse all the failures of the other prosecutors, who until 2013 didn’t make the right decisions. The case was pending with a prosecutor in Frankfurt just a year before this prosecutor [in Lüneburg] took the case, and he said, “Oh, it’s so complicated, there are open legal issues, we cannot do this.” This trial proved that was completely wrong. It was not complicated. It was relatively easy. It could have been done in 1980.
What do you think of the dramatic intervention during the trial of the co-plaintiff and Holocaust survivor Eva Kor, who publicly forgave Gröning?
There are three problems with that. First of all, forgiving someone is a very personal act. But she didn’t do it in a personal way. She made a public show out of it. Number two is, she cannot forgive him for what he did to all the other people, and this indictment is not about what he did to her – he didn’t do anything to her; she might forgive Josef Mengele for being the doctor who treated her, but she cannot forgive Gröning for killing her relatives, or for participating in killing 300,000 people. And my third point is that if you are a co-plaintiff, which means you support the indictment, you should not use that situation to forgive the defendant. You either want him to be indicted, or you want to forgive him. It’s either/or. And all our clients think the same way. They found it disgusting, really disgusting, what she did.
Will any of the co-plaintiffs be at the verdict?
Probably not. It’s too fast. These are all old people, which is another consequence of the failure of the criminal justice system. Now it’s very hard for them to attend the trial.
Do you think that’s a shame?
Some of them would have come if the verdict had been announced next week, so for a few of our clients it is not good that the court decided to do it [on Wednesday], because it actually takes away their right to be here when the verdict is given. But this is only a very small number of our clients.
One of the lawyers today, Mehmet Daimagüler, brought up the parallel with trial of the neo-Nazi terror group National Socialist Underground in Munich, and other racist crimes in Germany today. He said both trials had to do with the failures of the state – the failure to punish criminals and the failure to protect innocent people. Do you see those parallels?
These are two failures, but they concern different reasons and different periods of time. But the parallel could be that there is still not enough awareness among the German authorities of the importance of really fighting crimes of anti-Semitism. If a prosecutor in 2005 dismisses a case with the argument that the SS on the ramp were actually not necessary there, and therefore there was no causation, then this shows a lack of understanding of what actually happened in Auschwitz – you can only say that if you are trying to get rid of these cases. You could connect that with the failure of the investigating authorities to have a clear view that there could be something like the NSU in Germany these days.
A blindness?
Yes, some kind of blindness, though a different kind of blindness – I would not really compare that.
Cornelius Nestler is a lawyer and law professor at the University of Cologne. He also represented co-plaintiffs at the trial of former concentration camp guard John Demjanjuk in Munich in 2011.
