Zachary J. Goldberg
Recent headlines have focused on elderly former Nazis being charged over allegations concerning their actions during the Holocaust. In May 2015, Oskar Groening, the so-called Accountant of Auschwitz, was charged with 300,000 counts of accessory to murder. Groening collected and counted the money and other valuables stolen from the prisoners arriving at the camp, and sent the money to his Nazi superiors in Berlin. In July 2016 he was sentenced to four years in prison. In September 2015, an elderly woman who worked as a telegraph operator at Auschwitz was charged with 260,000 counts of complicity to murder. This year alone has already seen the suspended trial of Hubert Zafke, accused of 3,681 counts of murder while he was a medical attendant at Auschwitz, and the trial of Reinhold Hanning, a former camp guard at Auschwitz accused of being an accessory to 170,000 counts of murder.
These cases, along with up to 30 others, are the result of a recent expanded investigation by German war-crimes prosecutors. The legal precedent in Germany for the pursuit of these individuals is founded in the 2011 conviction of John Demjanjuk on charges of accessory to murder for his time working as a guard at the Sobibor death camp.
Due to the advanced ages of the individuals involved in these cases, many have asked whether they ought to be legally prosecuted, and if found guilty, sent to prison. For famed Nazi hunter Efraim Zuroff the answer is clear: the passage of time does nothing to decrease an individual’s guilt. Former Nazis are just as guilty today for their crimes as they were 75 years ago.
Although Zuroff may be correct that an individual’s legal guilt (assuming the absence of statutes of limitation) and moral responsibility do not diminish simply through the passage of time, and certainly some crimes are so horrendous they ought never be forgotten, the issue is not so easily laid to rest. We must first ask ourselves what the purpose of criminal punishment is.
There are two main philosophical approaches to answering this question: utilitarian and retributivist. The utilitarian Jeremy Bentham argued that the prosecution of criminals must have a beneficial consequence for society for it to be justified. Specifically, its principal objective is deterrence. Punishment is justified insofar as it deters others from committing similar crimes, thereby protecting economic security and promoting prosperity. Hence punishment is justifiable only as a device for maintaining social order and for promoting and protecting the interests of society.
The retributivist standpoint is based on the notion that the criminal’s legal transgressions deserve punishment regardless of the punishment’s potentially beneficial consequences for society. Succinctly put, it is a moral obligation to proportionately punish individuals for their wrongdoing. Representing this view Immanuel Kant claims that “the law of punishment is a categorical imperative”. What Kant means is that punishment for wrongdoing is an unconditional moral demand that must be fulfilled regardless of contingent circumstances such as convenience, inclination, or the passage of time. Kant is so convinced that punishment be meted out for merit’s sake and not simply to benefit society, he argues that it is the obligation of society to punish its criminals even if that society were to dissolve.
Even if a civil society resolved to dissolve itself with the consent of all its members—as might be supposed in the case of a people inhabiting an island resolving to separate and scatter themselves throughout the whole world—the last murderer lying in the prison ought to be executed before the resolution was carried out. This ought to be done in order that every one may realize the desert of his deeds, and that blood-guiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of justice.
The current debate whether aging former Nazis ought to be prosecuted has been conducted mainly within the bounds of these two philosophical perspectives. Those who argue that there is no longer any point to imprisonment for the perpetrators appeal to utilitarian reasons. They claim compellingly that deterrence does not seem to be relevant in these cases. First, participating in genocide is no longer a likely occurrence in Germany. The institutional and political structures that were established to carry out the Holocaust were destroyed at the end of the war, and Germany is currently a stable democracy. Of course there are still Neo-Nazis in the country, but it is doubtful that the criminal prosecution of former Nazis will deter them from their hate and intermittent acts of violence. If legal measures could serve this purpose, it is more likely that the current laws in Germany and the EU prohibiting genocide denial, the public showing of Nazi symbols, and incitement to violence would.
Further supporting the utilitarian argument, there is also evidence that criminal prosecutions might result in an increase in anti-Semitic views or violence, and not just from Neo-Nazis. In 2009 psychologists Roland Imhoff and Rainer Banse discovered that “the perception of Jews’ ongoing suffering from past atrocities can result in an increase in anti-Semitism”. Reminders of WWII can evoke feelings of guilt and result in a rise in defensive anti-Semitism even among some contemporary Germans. If the consequences of the current prosecutions will have these kinds of negative consequences for society or no benefit at all, then defenders of the utilitarian perspective must conclude that the prosecutions cannot be justified.
Conversely, retributivists argue that neither the age of the accused nor the length of time passed since the perpetration of their crimes provide reasons to refrain from prosecution. They contend that by virtue of having committed crimes, the individuals in question deserve to be prosecuted and, if found guilty, criminally punished.
In an attempt to sift through the conceptual advantages and disadvantages of these theories, and to identify how and under which circumstances each theory may be justifiable, John Rawls argues that we must distinguish between justifying a practice as a system of rules to be applied and enforced, and justifying a particular practice that falls under these rules. To illustrate, Rawls asks us to imagine a son asking his father the following two questions:
- Why do we punish people?
- Why was S punished?
The answer to the first question, and for Rawls the answer to many questions regarding the justification of a practice, can be answered by appealing to utilitarian principles. The father might say to the son that we punish people to protect law-abiding citizens from criminals, or to stop people from doing things that would make things more difficult for all of us. In contrast, to answer the second question the father must appeal to the rules of the specific practice. “S was punished because she broke the law.” The first question asks why we have the institution of punishment at all. The second question asks why a specific individual was punished rather than someone else, or what she was punished for.
According to Rawls, it is unjustifiable to employ utilitarian reasoning to answer the second question. That is, utilitarian principles cannot justify or challenge the legitimacy of a particular act falling under a system of rules even if that system of rules is justified by utilitarian principles. For example, consider the practice of making and keeping promises. It may be true that the system of making and keeping promises is justified on utilitarian grounds; making and keeping promises maximizes utility by allowing us to trust and depend on each other. Although this reasoning justifies the practice, it does not apply to particular acts falling under the practice. If an individual were to make a promise and then decide not to keep it because not keeping it is expected to maximize utility, the individual has not understood what a promise is. Once an individual has made a promise, she is bound to keep it. That is simply what a promise is. Hence, the system of promising in general is justified by utilitarian reasons, but particular acts of keeping one’s promises are not susceptible to utilitarian arguments.
Analogously, although we can justify the system of punishment on utilitarian grounds, it is unjustifiable to argue for or against a particular punishment using the same principles. A person is punished if he or she breaks the law regardless of whether that particular punishment satisfies utilitarian criteria. A particular act of punishment is justified on retributive grounds—if an individual commits a crime, he or she deserves to be punished.
Despite Rawls’s insightful distinction between appropriate ways to justify a system and a particular practice within that system, it appears that framing the discussion as one between utilitarian and retributive theories of punishment still leaves us at an impasse. The case of elderly Nazis is a perplexing one precisely because it seems to be an exception to the categories of justification that Rawls relies upon. The advanced age of the accused in the current cases profoundly complicates matters. An important, if not essential, characteristic of criminal punishment is to deprive criminals of the liberty to pursue their own good, at least temporarily. However, the opportunity to deprive the elderly of this pursuit has passed. This key feature of punishment cannot be realized when the accused have already lived the lives they wanted to live. Although we may feel disappointment that these former perpetrators were not prosecuted at an earlier point in their lives, and that this missed opportunity allowed them to pursue the ends, goals, and lives they desired, the question remains whether imprisonment is called for at the present time.
Perhaps we can find a resolution to this quandary by identifying the following misconceptions. First, it is a mistake to focus this debate solely on the characteristics of the accused perpetrators, such as their age. We must attend to the moral status of the victims. Second, it is folly to assume that the only alternative to prosecution and imprisonment is the absence of any response altogether.
Concentrating only on juridical theories of punishment obstructs our ability to see what is significant about publicly addressing the crimes of aging former Nazis or their accomplices. When an individual’s or group’s moral status has been discounted, ignored or denied, there is a moral duty to repair the wrongdoing. The purpose of the reparative, restorative, or compensatory measures is to acknowledge the individual’s or group’s status as a member of the moral community. Margaret Urban Walker writes: “Repair cannot mean return to the status quo, but must aim at bringing morally diminished or shattered relations closer to morally adequate form.” Victims and the descendants of victims must be brought back into the moral community and shown that their status as full members of the moral community is recognized and will be honored by other members.
The recognition of wrongdoing is itself a morally significant act. It identifies victims’ vulnerability to violent and grievous wrongdoing, and, in so doing, simultaneously acknowledges victims’ moral standing by repudiating the harm or wrongdoing they experienced. For these reasons, the identification and recognition of wrongdoing can be an act of moral repair.
A simple affirmation of a victim’s moral vulnerability can serve as an expressive act indispensable to the restoration of a diminished moral standing. The publicizing of the crimes of former Nazis is a means to making this simple but crucial affirmation. Consequently, it is paramount that the heinous crimes of the past be brought to light. The relevant concerns related to the age of the accused do not outweigh the moral obligation to recognize both the moral status of others and the ways by which this status has been assaulted.
Nevertheless, the question remains how such crimes ought to be exposed. Criminal prosecution and imprisonment of the guilty is one way to recognize victims’ past or ongoing moral vulnerability in order to repair their moral status. However, it is not the only one. Publicizing acts of wrongdoing can occur through truth commissions, the building of memorials, commemorations, public apologies, or even public humiliation. For example, a practice known as rough music, ran-tan, or ran-tanning, was an English folk custom common in the 18th and 19th centuries meant to humiliate individuals who had violated social or moral norms. Essentially, raucous processions involving songs, the rattling of various cacophonous instruments, as well as the performance of short plays and bawdy limericks were held outside the home of the accused. Even effigies of the accused were burned as part of the activities. The goal of such “festivities” was to humiliate the perpetrator through publicizing his or her offenses.
I do not advocate a return to processions of rough music outside the homes of former Nazis and their accomplices. However, we might adopt its underlying objective. The notion of humiliating aging perpetrators of the Holocaust simply by publicizing their past criminal and moral transgressions may provide a satisfactory solution to the question of how to punish them, and provide a balance between utilitarian and retributivist needs. The age and deteriorating health of the accused may indeed provide convincing utilitarian reasons for them to avoid prison. Nevertheless, public humiliation expresses to their victims and victims’ descendants that the past crimes of the Nazis and their accomplices deserve to be recognized and detested. In such cases, it is precisely this expressive recognition to the victims and their descendants that is normatively significant. Although the accused may indeed be too old to justify their imprisonment, doing nothing is not an acceptable response. Otherwise, as Kant warns, we “might all be regarded as participators in the murder as a public violation of justice”.
 https://time.com/4184509/auschwitz-nazi-trial/; https://www.theguardian.com/world/2016/feb/11/auschwitz-guard-trial-concentration-camp-germany-reinhold-hanning
 I. Kant, The Metaphysics of Morals, Translated and Edited by Mary Gregor (Cambridge, 1996): 6:331.
 I. Kant, The Science of Right, Translated by W. Hastie (1790/2006): 83-84.
 R. Imhoff and R. Banse, “Ongoing victim suffering increases prejudice: The case of secondary anti semitism”, Psychological Science, 20 (2009): 1443–1447.
 See also, T. Jacobs, “The Backlash of Secondary Anti-Semitism”, Pacific Standard. Oct. 26, 2009.
 Moreover, one has to calculate the financial cost of prosecuting and imprisoning individuals who are extremely unlikely to be future threats to the security and wellbeing of society and its inhabitants. On average it costs the German government € 92,87 per day to imprison someone. See: https://www.berliner-zeitung.de/in-berlin-sind-gefaengnisse-billiger-als-in-anderen-laendern-ein-tag-knast-kostet-88-70-euro-15609910
 J. Rawls, “Two Concepts of Rules,” The Philosophical Review, Vol. 64, No. 1 (Jan., 1955): 3-32, p. 5.
 Margaret Walker, Moral Repair. (Cambridge, 2006), 26-27.
 See also: E.P. Thompson, “Rough Music Reconsidered,” Folklore Vol. 103, No. 1 (1992): 3-26.
 The Allies often attempted to humiliate Nazi collaborators by shaving their heads, sometimes stripping them to their undergarments, and making their acts public.
(c) Zachary J. Goldberg
Dr. Zachary J. Goldberg ist wissenschaftlicher Mitarbeiter an der Professur für praktische Philosophie an der Universität Regensburg.