A 91-year-old woman in Germany alleged to have worked at Auschwitz has been charged with 260,000 counts of being an accessory to murder. A former SS member, she served as a radio operator for the camp commandant.
Recently, Oskar Gröning – who became known as the “book-keeper of Auschwitz” for counting banknotes confiscated from prisoners – was sentenced to four years in prison after being convicted of 300,000 counts of being an accessory to murder. In Gröning’s case, the judgement noted that, “all the defendant’s activity in Auschwitz was characterised by the fact that it supported multiple murders, without providing support to specific individual acts.”
That decision has opened up a rather nasty can of worms for jurisprudence. What constitutes being an accessory and what degree of complicity is required? Where is the line to be drawn?
Ordinarily, an accessory is a person who assists in the commission of a crime, but who does not actually participate as a joint principal. The distinction between an accessory and a principal is a question of fact and degree.
The principal is the one whose acts or omissions, accompanied by the relevant mens rea (“guilty mind”), are the most immediate cause of the actus reus (“guilty act”). If two or more people are directly responsible for the actus reus, they can be charged as joint principals. The test to distinguish a joint principal from an accessory is whether the defendant independently contributed to causing the actus reus rather than merely giving generalised and/or limited help and encouragement.
That much seems clear and, in respect of German law, is confirmed by George P. Fletcher in his book Basic Concepts of Criminal Law (1998):
“German law adheres to the principle of individual culpability and, at the same time, recognizes the doctrine of derivative liability in the field of complicity. Aiders-and-abettors are punished only if they actually render aid and therefore participate in an actual crime.”
However, in relation to the Nazi death camps and only recently, it seems that anyone carrying out a function of some sort over a period of time (how long precisely?) can be indicted for participating in the crime of murder. Since State terror requires countless petty officials and functionaries, all can now be prosecuted alongside leaders and high officials. Who were the system’s stenographers and telegraph operators? Who were the drivers of the trains that took men, women, and children to the Nazi death camps? Who delivered the equipment used to kill? If the law is to be applied consistently, these are not trivial questions.
In 2014 the Simon Wiesenthal Center launched a poster campaign in major German cities, asking the public for information to help it track down surviving Nazi war criminals. The posters featured a photo of the entrance to the Auschwitz-Birkenau death camp and the slogan, “Late. But not too late!”. Operation Last Chance started in December 2011 to rally prosecutions following a legal precedent set by the conviction that year of John Demjanjuk, found guilty by a Munich court of being an accessory to the murder of 28,060 Jews while he was a guard at Sobibor in occupied Poland.
While German law cannot set a precedent for other countries, genocide and war crimes are now recognized in international law. The people responsible for what happened in Cambodia under the Khmer Rouge and in Rwanda under the Hutu government and in Bosnia and Herzegovina under Serbian domination can be tried and convicted by an International Tribunal.
In a fair world, the State-sanctioned crimes that took place during the civil wars in Spain, Algeria, Guatemala, and El Salvador, and the brutal military and paramilitary assaults against civilians in Argentina, Brazil, Chile and Paraguay (this list is not inclusive) should fall under the same legislation. In short, everyone who in some way contributed to the terror is guilty of being an accessory.
A can of legal worms indeed. This is not an argument for forgiving and forgetting. Those responsible for, or who took part in, or who aided and abetted such crimes must, in principle, be brought to justice. But the application of the law has to be universal and its moral benefit clear. Prosecuting a 91-year-old woman sends the right signal, but only if everyone – and especially those halfway up the chain of authority – is brought to justice.