Books: The Demjanjuk legal saga

Lawrence Douglas assesses the achievements and failures in the decades-long efforts to bring Nazi war criminals to justice.

By EFRAIM ZUROFF
Convicted Nazi death camp guard John Demjanjuk leaves a Munich courtroom after hearing the verdict in his trial, May 12, 2011 (photo credit: REUTERS)
Convicted Nazi death camp guard John Demjanjuk leaves a Munich courtroom after hearing the verdict in his trial, May 12, 2011
(photo credit: REUTERS)
FROM 2001 through 2015, Germany convicted a total of seven individuals for Nazi war crimes, with no more than two men ever being successfully prosecuted in any one year, and the last successful conviction registered in 2011. Yet now in 2016, more than 70 years after the Holocaust, four trials were slated to commence (one has since been suspended for medical reasons, and another defendant died), six other cases are in the final stages of investigation, and an unknown number of additional cases are likely to follow.
Ironically, the catalyst for this surprising increase in prosecutions by the German authorities has been none other than the case of Ivan Demjanjuk, the most convoluted trial of a Nazi war criminal in history.
A Ukrainian who served in the Red Army, he was captured by the Germans in 1942, but obtained his release by volunteering for the SS. After World War II, he immigrated to the United States, where he was denaturalized and ordered deported over three decades ago for concealing his wartime service with the Nazis at the Treblinka death camp. (In the US, he could not be prosecuted for Nazi crimes since they had been committed outside the US and his victims had not been Americans.) Extradited to Israel, where he was prosecuted for crimes against the Jewish people and crimes against humanity, Demjanjuk was sentenced to death in 1988 by a special tribunal of the Jerusalem District Court.
The tribunal identified him as the notoriously cruel “Ivan Grozny” (Ivan the Terrible), who had helped run the gas chambers at Treblinka.
During the course of his appeal to the Supreme Court, however, it emerged that while he had indeed served as a death camp guard, it was at Sobibor and Majdanek, not at Treblinka. Convicted of serving in a Nazi organization, an offense which carried a seven-year sentence, which Demjanjuk had already served in an Israeli jail, he was expelled back to the US.
There, he initially succeeded in regaining his American citizenship. To the credit of the US Justice Department’s Office of Special Investigations, they once again succeeded in convincing the courts to strip him of his American citizenship and order him deported, but this time for his service at Sobibor.
At this point, the most that the Americans could do was to get Demjanjuk out of the US. They had two choices. The preferred option was for an extradition request from a country willing to prosecute him for his crimes. The other possibility was admission to a country willing to grant him residency with no threat of legal action.
The problem was, however, that initially the Americans could not find a single country willing to admit Demjanjuk, which meant that despite decades of efforts by the US and Israel, the former Nazi death camp guard would be able to remain with his family in Cleveland, with the nature and scope of his World War II crimes neither fully clarified nor appropriately punished.
Under these circumstances, the Americans appealed to Germany, as the best possible choice to extradite Demjanjuk and prosecute him.
There were, however, two serious obstacles in this regard. The first was that in order to prosecute a Nazi war criminal in Germany, the prosecution had to prove that the suspect had committed a specific crime against a specific victim voluntarily “with inner conviction,” and there was no such evidence available against Demjanjuk. The second problem was that for decades, the German authorities had, with only a few rare exceptions, refrained from bringing non-German suspects to justice for Nazi crimes.
Ultimately, however, Kirsten Goetze, a lawyer at the Central Office for the Clarification of Nazi Crimes, the German government agency entrusted with the initial investigations of Nazi perpetrators, was able to devise a legal strategy that enabled the extradition and successful conviction of Demjanjuk in Munich, thereby finally ending the longest legal saga in post-Holocaust history.
And it is this extremely complicated subject, which Lawrence Douglas, James J. Grosfeld Professor of Law, Jurisprudence and Social Thought at Amherst College, Massachusetts, seeks to tackle in this book, which will most probably be considered the definitive work on the Demjanjuk case.
Douglas, who has previously written about the legal aspects of Holocaust trials, opens the book with a glimpse of the initial sessions of Demjanjuk’s trial in Munich, in October 2009, which he attended, and then presents the entire history of the case from the initial investigation of the Ukrainian death camp guard in Cleveland, in the seventies, to his conviction in Germany for accessory to murder in May 2011. During his trial, Demjanjuk lived at a German nursing home in Bad Feilnbach, where he died in 2012, with the appeal against his conviction still pending.
Obviously, his chronology of the events up to the trial in Germany is not new, although he does add various insights regarding the trials in America and in Israel. Yet because this book was written after Demjanjuk’s death, Douglas has been able to put the Demjanjuk trials into historical perspective, and evaluate their relevance, importance, achievements, and failures in the larger context of the decades- long efforts to bring Nazi war criminals to justice. That, in my opinion, is the most valuable contribution of this volume.
In assessing the Demjanjuk trials, Douglas primarily compares them to the Nuremberg trials and that of Adolf Eichmann to explain the challenges that Holocaust crimes posed for the conventional legal systems in the international arena, as well as in the three countries that prosecuted Demjanjuk.
In a brilliant introduction, Douglas summarizes the problems and the various responses in such a clear fashion that I am tempted to say it almost makes reading the rest of the book (which is not an easy read for anyone who is not a lawyer) superfluous.
He shows, for example, how at Nuremberg by establishing special courts, creating novel categories of criminality (genocide and crimes against humanity), new principles of jurisdiction and unorthodox rules of evidence, the courts were able to successfully prosecute the major criminals of the Third Reich.
In Germany, on the other hand, the legal system severely limited the ability of their courts to hold Holocaust perpetrators accountable, and Douglas does an excellent job of chronicling this scandal and identifying the factors that hindered prosecution. Thus, for example, after 1954 they refused to allow defendants to be charged with crimes against humanity or genocide, which were created ex post facto, even though they had been applied successfully at Nuremberg.
The Germans insisted on treating Nazi atrocities as ordinary crimes, to be dealt with by ordinary courts, using the existing criminal code. For many years, the most serious charge, which could be levelled, was murder (after 1960 everything else was barred by a statute of limitations), and even in the cases of death camp operatives, most of whom were considered accessories, not perpetrators, prosecutors had to prove that they had committed at least one specific criminal act.
If we add an amnesty granted inadvertently to all bureaucrats that derailed a trial of 300 persons who served in the Reich Security Main Office, the central hub of Holocaust implementation, the magnitude of their failure is absolutely outrageous. In fact, out of 120,000 investigations initiated by the German Central Office for the Clarification of Nazi Crimes, only 5,000 suspects were put on trial, of whom less than 600 were convicted, with many of the sentences far too lenient.
In view of this record, Germany’s agreement to try Demjanjuk was quite surprising, but as Douglas explains, the Germans rose to the challenge in an exemplary manner.
Thus, unlike the Nuremberg trials which were primarily document-driven, and the Eichmann and Demjanjuk trials in Israel, both of which relied heavily on survivor testimony, and were in effect atrocity trials as didactic exercises, the Munich proceeding was a trial by historical experts.
Its primary mission was less to explain Nazi atrocities than to present a historical analysis of the extermination process in order to expose the role of a single person, and in so doing, successfully established a precedent which has paved the way for numerous additional prosecutions of death camp guards, in a manner no one could have ever expected.
Dr. Efraim Zuroff is the chief Nazi-hunter of the Simon Wiesenthal Center. His latest book, written together with Rūta Vanagaitė, “Mūsiškiai; Kelionė Su Priešu” (Lithuanian for “Our People; Journey with an Enemy”), examines Lithuanian complicity in Holocaust crimes.