Last chance for justice

An unlikely duo of German lawyers search for Nazi war criminals.

By SHULA KOPF
March 29, 2012 00:01
Convicted Nazi war criminal John Demjanjuk [file]

John Demjanjuk 370. (photo credit: REUTERS/Michael Dalder)

The two Nazi-hunters sit across from Dov Weissberg, 82, a retired thoracic surgeon from Rehovot, and ask him about events that took place 70 years ago in Lviv, then in German- occupied Poland. Weissberg was 13 years old when 40,000 Jews were deported to the Belzec death camp in August, 1942, his mother among them.

“Do you have any documents that show your mother’s birth or marriage?” asks Thomas Walther, a retired German judge whose passion since leaving the bench is to bring Nazi criminals to justice. He and his colleague, Cornelius Nestler, also a lawyer, are in Israel hoping to find co-plaintiffs for a possible trial in Germany.

“Of course not,” Weissberg replies. “All I have are my memories.”

And sharp they are, his memories, untouched by the dense accumulation of new ones over 70 years. In Weissberg the two may have found the perfect witness. He recalls dates, addresses, numbers and details with surgical precision. His narrative resumes in a flat cadence, belying the horror packed into this words.

“Can you tell us the day when your parents were taken away?” asks Walther.

“On the 10th of August, when the action started, a number of German uniformed men and a few Ukrainians came to our home and wanted to take just the children,” Weissberg responds.

“My mother became hysterical. She fell on her knees, grasped one of the officers by his boots and begged him to leave her at least one of her children. While struggling to free his legs, the officer turned around, gave a short order to his subordinates, and they all left, leaving us behind. My mother was a German language teacher and perhaps her good German and her aesthetic appearance caused the commander to suddenly make a decision to leave us.”

“You said that at that time, your mother already knew that if they took her children away it was to their death?” Walther gently probes. Bespectacled, with neck-length hair that has gone white and curls slightly in all directions, Walther looks more the part of a college professor than the prosecutor and judge that he used to be.

His colleague, Cornelius Nestler, a tall, square-jawed, blue-eyed man, concentrates on taking notes.

“It was quite obvious that if they take children, it’s not for ‘resettlement.’ She knew she was going to lose her children.”

Did she know where they would be taken? “No. We didn’t know at the time.”

The Weissberg family’s reprieve was short-lived.

“On August 17 they came for us,” the elderly man continues. “This time there were no discussions, no begging. We all were gathered in one place, a yard in a private apartment house where there was one wide gate and no other exit. There were several hundred people there.

“My mother forced us to run away, ‘I will come immediately after you,’ she said. We were small, and quick. She told us to stay close to the gate. ‘When they push people inside, you go between them and get out.’ Suddenly a new group of Jews came through this gate and, between the boots of the SS men and the legs of the people being shoved in, we managed to run away, my brother and me.”

He never saw his mother again.

Weissberg describes how he was sent to Warsaw to join his maternal uncles who were hiding under false papers.

Nestler hands Weissberg a power-of attorney document to sign, giving the two lawyers the right to represent him as a coplaintiff in the eventuality that there will be a trial. He will not have to pay any fees.

Walther and Nestler are an unlikely pair of Nazi-hunters. Both are German. They represent no official body and no one pays for their time or expenses.

Walther is a maverick retired Bavarian Circuit Court judge, who helped change German legal thinking to make it possible to convict low-level cogs in the Nazi death machine. Nestler is a professor of criminal law at the University of Cologne. His wife, Debbie, is an American Jew from Miami.

They have come to Israel to search for co-plaintiffs for a possible trial against two Ukrainian guards, who rounded up Jews in Lviv for deportation to the Belzec death camp. Also on their list are German former concentration camp guards whose culpability for crimes against humanity has not diminished over time. But time is, in fact, the protagonist in this drama. Both criminals and witnesses are in their 80s and 90s, which leaves justice just a slight gap to squeeze through before the window of opportunity shuts forever.

“We’re pretty much running out of time,” admits Nestler, his voice strained with frustration. “The defendant, witnesses and co-plaintiffs are in an age group where you cannot be sure that they will be among us in a year.” He pauses and puts it bluntly: “This will all be over once these people are dead.”

Nestler, 56, is making his first visit to Israel.

Walther, 69, keeps a hand-crocheted yarmulke, white with a blue edge, in his pocket just in case he might visit a synagogue.

This is his third visit to Israel.

Both say their motivation for pursuing these old Nazis is to be on the right side of the issue.

“It’s not just about catching the bad guys,” says Walther with thoughtful gravity. “It’s also a chance to prove that our justice system was wrong in the past, which is now obvious. A trial like this, through the media attention, is also a history lesson.”

Nestler doesn’t see it that way. The main issue, he says, is bringing a murderer to trial. The history lesson would be an added bonus.

Demjanjuk Walther and Nestler met during the 2009 Munich trial of the infamous John Demjanjuk, a Ukrainian guard at the Sobibor death camp, who died March 17, aged 91, in a German nursing home. Nestler represented 12 co-plaintiffs, Dutch Jews whose parents or siblings perished in Sobibor during the time that Demjanjuk served as guard.

“In a trial such as this, where the defendant is an elderly, sick man, it is very important to show that there is a face that represents the victims,” Nestler explains.

Walther is the one who introduced the legal twist that made the trial in Germany possible. After his retirement from the bench, instead of enjoying his pension and taking up a hobby, Walther took a job at the Central Office for the Investigation of Nazi Crimes in Ludwigsburg, Germany.

One day he came across Demjanjuk’s file on the Internet and decided he wanted to help bring him to trial.

But there was a problem in putting Demjanjuk on trial in Germany. According to German law, the prosecution must have evidence of an actual act of killing. So even though Ukrainian guards facilitated the mass murder of Jews, they could not be tried without such specific proof.

Walther’s insight put a new spin on German legal thinking. He compared the death camps to a factory and posited that if a person worked in this “factory” in any capacity, he bears responsibility for the “product” – in this case, mass murder. It was no longer necessary to prove a specific act of killing. The fact that Demjanjuk was a guard in Sobibor was enough to convict him as an accessory to murder. Demjanjuk, 91, was found guilty in May 2011 of helping to murder more than 28,000 Jews at Sobibor and sentenced to five years in prison. He was released pending an appeal and was moved to a nursing home.

Time is of the essence According to Eli Rosenbaum, head of the US Justice Department’s Office of Special Investigation (OSI ), the principle that helped convict Demjanjuk has been recognized in US courts for more than 30 years.

“The European countries could have done so much more over those three decades than has been done,” he tells The Jerusalem Report. “But the question is what will be done in the little time that remains? Time is very much of the essence. It’s an urgent situation. These cases can be prosecuted and won in court, as the prosecution proved in the Demjanjuk case.”

Rosenbaum points out that the vast majority of surviving Nazi criminals are not in North or South America.

“They are where they always have been – in Europe, and in Germany and Austria in particular,” he says.

Nestler agrees.

“Tens of thousands of people participated in a supporting way to make the Holocaust possible. There are probably thousands of Germans still alive today who made sure that system functioned,” he says.

Efraim Zuroff, director of the Israel office of the Simon Wiesenthal Center, says the Demjanjuk conviction “was the first time in German legal history that a Nazi war criminal was convicted without evidence being presented to the court establishing a specific crime with a specific victim who could be named.”

As far as Zuroff knows, other than himself, Walther and Nestler are the only nongovernment persons working today to bring Nazi criminals to justice.

“The verdict changes the game completely. In theory, it opens up tremendous potential in terms of the prosecution of Nazi criminals,” says Zuroff.

It is this potential for new trials that prompted Walther and Nestler to arrive in Israel in February to interview witnesses, hoping to pressure the prosecutors in Munich to open new cases. In their crosshairs are two alleged Nazi collaborators now living in the US .

They decline to divulge the name of one for fear that publicity will cause him to flee.

The other is Ivan (John) Kalymon, 90, who served in the Ukrainian auxiliary police in Lviv, then German-occupied Poland, today Ukraine.

He is on Zuroff’s list of “the ten most wanted Nazi criminals.”

According to the US Justice Department, Kalymon participated in the murder, roundup and deportation of Jews to Belzec, the same action in which Weissberg’s mother was deported.

Self-incriminated Kalymon, who immigrated to the US after the war, was incriminated by his own record keeping.

US Justice Department investigators found Nazi documents in Soviet archives in which Kalymon matter-of-factly reported that he “fired four shots while on duty,” killing one Jew and wounding another. The reports also said his unit delivered 2,128 Jews to an assembly point in Lviv, where 12 were “killed while escaping.”

Kalymon, a retired Chrysler auto engineer from Troy, Michigan, was stripped of his US citizenship in 2007 and a judge has ordered his deportation.

A 200-page report against Kalymon is sitting on the desk of the single special prosecutor for Nazi crimes in Munich.

Nestler is frustrated at the slow pace of events. “The problem is that the Prosecutor’s Office is not doing its job. There is a lack of manpower and no political drive to do it,” he says.

According to the Justice Department spokesman in Munich, they are aware of Kalymon’s age but cannot say when the investigation into his case will be concluded and if an arrest warrant will be issued. They declined to comment any further on the case.

“You can imagine that the fact-finding in capital cases in accordance with the requirements of jurisdiction are very extensive, and long-ago deeds make it extremely difficult,” says Thomas Steinkraus-Koch a spokesperson for the German Justice Department.

Walther, who has worked both as a prosecutor and a judge, believes the prosecution would rather let time take its course.

“It’s a lot of work and these are old men who will die out. If we wait two years it will be all over,” he says.

Walther and Nestler hope that Israeli coplaintiffs willing to testify might add urgency to the cases. German criminal procedure permits victims and their families to attach themselves to prosecutors as co-plaintiffs.

“It will be extremely helpful if we can say that there are co-plaintiffs, who have lost family members, and we have to go forward in the interest of those people who live in Israel,” says Walther.

Both men say they have personal reasons for waging a fight against Nazi collaborators so many years after the end of the war.

For Walther it is his father, Rudolf, who ran a construction firm in Erfurt, a city in the center of Germany, and had built factories for Jewish clients. He hid two Jewish families during the Kristallnacht riots in 1938 and later helped them get out of Germany. For 20 years, Walther kept a pen one of the families had sent him as a gift from Paraguay.

“My father has passed away but I am following in his footsteps. I do it for him a little bit,” he tells The Report.

Walther says that his life began just as many Jewish lives were snuffed out. When researching the Demjanjuk case, he says, he avoided looking at the list of transportation trains to Sobibor on June 22, 1943. He didn’t want to see who had died on the day that he was born.

For Nestler, the personal connection is through his wife.

“We visited Auschwitz together. After you walk though the gate, there are buildings made of bricks to the left. She bent down, picked up a couple of stones and placed them on a low wall, as is the Jewish custom in a cemetery.

“I then realized the distinction between us. From then on, every time something from the Holocaust came up, it was different for me than before. This concept of denying the right to live for every Jew translated to denying the right to live for someone like her. It had a face. It made it different. It became personal.”


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