Editor's Notes: Justice, finally, for a terrible Ivan?

Cleared by Israel of being 'Ivan the Terrible,' Demjanjuk has now been indicted in Germany for mass murder at Sobibor. But 'Wiesenthalitis' could save him yet...

david horovitz 224.88 (photo credit: )
david horovitz 224.88
(photo credit: )
Cleared by Israel of being Treblinka's 'Ivan the Terrible,' John Demjanjuk has now been indicted in Germany for mass murder at Sobibor. If convicted, Demjanjuk, 88, will probably spend his last days in a German prison. But 'Wiesenthalitis' could save him yet... 'That's Ivan," gasped Josef Czarny more than 30 years ago, when he was first shown a photograph of John Demjanjuk, a big, round-faced Ukrainian-born American, who was then in his mid-50s. "My God, he lives." Czarny, a survivor of Treblinka, first identified Demjanjuk as "Ivan the Terrible," who ran the death camp's gas chambers, from a selection of photographs of Ukrainian immigrants to America, sent to Israel by the US Immigration and Naturalization Service. He testified against Demjanjuk at his trial in Jerusalem - a trial which led to Demjanjuk being sentenced to death in April 1988 for war crimes and crimes against humanity. When Demjanjuk was appealing that conviction five years later, Czarny reiterated his certainty that the right man had received the right punishment. Pinhas Epstein, another Treblinka survivor, also testified against Demjanjuk, emphatic that here was the sadistic "Ivan" who took "satisfaction and gratification" from breaking the bones of his victims. Eliahu Rosenberg described "Ivan" Demjanjuk whipping and chopping noses, ears and other bits of flesh off Jews with his sword. He, too, when Demjanjuk was desperately appealing conviction and sentence - a sentence that would have made Demjanjuk the second man, after Hitler's Final Solution "architect" Adolf Eichmann, to be executed by Israel for Nazi war crimes - insisted that this was no case of mistaken identity. There were others. Other survivors who identified Demjanjuk as "Ivan" and testified to his acts of terrible, sadistic cruelty - the way he would smash his victims' skulls with a piece of iron piping, the relish with which he pumped carbon monoxide into the gas chambers. But Czarny was wrong, and Epstein was wrong, and Rosenberg was wrong. The "Ivan the Terrible" of Treblinka notoriety was a man named Ivan Marchenko. And even though, in one of the many unresolvable aspects of this wrenching tale, Demjanjuk had given "Marchenko" as his mother's maiden name on various statements as he sought to enter the US after the war - in fact, her maiden name was Tabachuk - the real "Ivan the Terrible" Marchenko was older, dark-haired and scarred on one cheek. The truth about the real "Ivan the Terrible" emerged at the Supreme Court appeal from the testimonies of Treblinka guards who had been tried and executed by the former Soviet Union in the 1940s, 50s and 60s. Evidence that the FSU had previously declined to make available. Evidence, it is often forgotten, that the Israeli prosecution brought to light. Marchenko, according to the deposition of his fellow gas chamber operator Nikolai Shalayev, was last seen fleeing to Yugoslavia in 1944. In the original trial, Demjanjuk's own alibis - the claim that he had been a Red Army soldier captured by the Germans in the Crimea, then held in a prisoner of war camp in Chelm (of all places) - had been dismissed in the face of the incontrovertible documentary evidence of his own signed ID card from the SS training camp at Trawniki in Poland, which records his transfer to Sobibor, and the Treblinka survivors' vivid testimony. His claims of innocence did not hold up, and the eyewitnesses did not break down. But in the appeal, the survivors' recollections, potentially clouded by the passage of decades, were outweighed by the Soviet trial depositions of the fellow Treblinka guards, testimony that was fresh when it was taken. And so the court overturned Demjanjuk's conviction as "Ivan the Terrible," ruled that he had already served the seven-year jail sentence due a member of a Nazi organization - as a guard who had served at Sobibor as a cog in the genocidal machine - and ordered him deported. "The Supreme Court lost its nerve," says Efraim Zuroff, the Nazi-hunter who heads the Simon Wiesenthal Center's Israel office and who vainly appealed to the Supreme Court to try Demjanjuk for his Sobibor crimes. "No, John Demjanjuk was not 'Ivan the Terrible,'" says Zuroff. "He was another terrible Ivan." INDEED HE was. Demjanjuk's family in Seven Hills, Ohio, insist to this day - naturally - that the 88-year-old long-retired Ford auto worker never killed a soul. "He isn't a murderer. He is a very gentle, kind person," his son John Jr. declared earlier this month. "I know my dad and I know in my heart he did not kill anyone," continued the son, who has stood by his father's side throughout the twists and turns of this interminable affair. But the evidence that places Demjanjuk as an SS guard at Sobibor from March to September 1943, when 29,000 people were killed, is powerful indeed. His job there, says Zuroff, "was to carry out the mass murder of the arriving Jews." Evidence at the original trial had made plain Demjanjuk's presence at Sobibor. And as his case for Demjanjuk as "Ivan the Terrible" of Treblinka fell apart during the appeal, state prosecutor Michael Shaked had attempted to highlight the crimes the appellant had committed there. Asked by one of the Supreme Court judges during the appeal whether the prosecution would have sought Demjanjuk's extradition for his Sobibor role, Shaked replied, "There is no moral difference whether Demjanjuk pushed one Jewish child into the gas chamber in Sobibor or at Treblinka." But the focus of Demjanjuk's trial had been Treblinka, not Sobibor, and the Supreme Court chose not to initiate another prolonged legal process at which Demjanjuk would have been given the right to marshall a defense against the Sobibor allegations. Today, though, that is precisely what Demjanjuk may be forced to do, because state prosecutors in Munich this month indicted him as a participant in those 29,000 Sobibor murders. DURING THE 1992 appeal, which took place in an airless, charmless room in Jerusalem's Russian Compound, Demjanjuks senior and junior made for quite a contrast. As the legal arguments raged around him in a language he could not understand, the appellant sat serenely with his padded translation headphones clamped to his ears, arms folded across his chest, generally maintaining the air of a rather bored party guest doing his best to look politely interested in the small talk. His son, however, was clearly closely following - and reacting to - every word. When the prosecution's Shaked, in his weakest moments, was attempting to provide plausible explanations for the dead Treblinka guards' identification of Marchenko as "Ivan the Terrible," John Jr. would shake his head in bemused wonderment, occasionally muttering "shocking" at what he plainly regarded as Shaked's desperate theorizing. When Shaked detailed the evidence placing his father at Sobibor, however, John Jr.'s features would cloud over, he would rest his head on his hands, and his eyes would gaze unseeingly down at the floor. The appellant, in those days, could be something of an actor. For the television cameras on June 1, 1992, the first day of the final sessions of the appeal, for instance, he was a weak, ailing figure, head lolling uncontrollably backward, eyes closed in pain, hand shaking as he tried to pour a little water down his parched throat. Barely had the cameras left, but Demjanjuk was restored. He no longer required a wheelchair for the journey into the courtroom. He positively ambled into the dock, smilingly presented his hands for the removal of his manacles, and even helped tighten the manacles again when it was time to be led out. Now, in Seven Hills, Demjanjuk's wife, Vera, and John Jr. are making the argument that he is far too ill to stand trial in Germany for the Sobibor crimes. He is "very frail,' the family says. He suffers from "a blood and bone marrow disorder" which requires several visits each month to the hospital for blood transfusions. "He's a sick old man," says his lawyer, John Broadley. Retorts Zuroff dryly, "He's got 'Wiesenthalitis'" - a medical condition particular to Nazi war criminals seeking to avoid justice. IT'S CLEAR to Zuroff that Demjanjuk "will do everything he can to look as sick as possible" and thus escape this surely final effort to punish him for his war crimes. It's not clear to the veteran Nazi-hunter whether the tactic will work. "But one way or another, I expect this to go pretty quickly now," he says. If Demjanjuk is sent to Germany, says Zuroff, "the evidence is all in place, he would hopefully end his life in a German jail" - Germany has no death penalty - "and the powerful message will be sent that the passage of time in no way diminishes the guilt of the perpetrators of the Holocaust and that old age should not afford a refuge for merciless killers." Zuroff notes that even now, more than 60 years later, "barely a week goes by" without his office being contacted over another case of an alleged Nazi war criminal coming to light, that some 200 new investigations were opened in the past year, that there are currently some 800 ongoing investigations in 17 countries and that there have been 76 convictions or legal victories since 2001, from members of murderous security police units to concentration camp guards. Nonetheless - with the possible exception of Mauthausen concentration camp's SS "Dr. Death" Aribert Heim, whose reported death in Cairo years ago Zuroff is currently evaluating - Demjanjuk, for his role in those 29,000 murders, heads the Wiesenthal Center's most wanted list. Given the gravity of Demjanjuk's crimes, then, why did Shaked dodge the appeal court judge's question: Would Israel have sought Demjanjuk's extradition, even without the "Ivan the Terrible" misidentification, for his role at Sobibor? Surely the prosecutor could in good conscience have replied in the affirmative. Not necessarily, says Zuroff, and begins the complex explanation at the very heart of the Demjanjuk saga. "Why was Demjanjuk extradited to Israel in the first place?" he asks rhetorically. "Because under US law, suspects cannot be prosecuted there for crimes committed outside the US whose victims were not US citizens. So the US authorities used immigration and naturalization laws against Nazi war crimes suspects, stripping them of their citizenship and ordering their deportation. In the case of Demjanjuk, given the gravity of his alleged crimes as 'Ivan the Terrible of Treblinka,' who sent hundreds of thousands to their deaths, they didn't want to just order him deported and risk that he not be put on trial. So they turned to Israel. And Israel, again given the gravity of the alleged "Ivan" crimes, agreed to take him - in only the second such case, after Eichmann. "Would Israel have taken Demjanjuk on the basis of his Sobibor role alone?" Zuroff continues. "I'm not sure that it would. The evidence against him was strong. But the only eyewitness who gave definitive testimony about Demjanjuk's role at Sobibor was a fellow Wachmann who died in the late 1970s. Would Israel have entered a process where the second execution of a Nazi war criminal here would have been based on the testimony of a dead Wachmann? I doubt it. It was always made clear to me that Israel would only seek to try very prominent Nazis - emblematic cases." But if Israel had not agreed to the US authorities' request, sought Demjanjuk's extradition, and put him on trial here as "Ivan the Terrible," what would have become of him? One possible answer lies in the case of Fedor Fedorenko, another Ukrainian-born Nazi guard. He too was alleged to have served as a Wachmann at Treblinka. He too was identified by Treblinka survivors Czarny and Epstein. He too was stripped of his US citizenship more than a quarter of a century ago. And since Israel had filed no request for his extradition, he was sent back to the place of his birth, the former Soviet Union. And there, in June 1986, having been convicted of treason and participation in mass executions, he was executed by firing squad. But Fedorenko, for reasons still not clear, chose to be deported to the Soviet Union; it is very unlikely he would have been sent there otherwise. Similarly, the US would not have forcibly extradited Demjanjuk to the communist Soviet Union, or to then-communist Poland, which would also have had an interest in putting him on trial. Were Israel not to have become involved, Demjanjuk might have been deported, though it's entirely unclear to where. Or he might have been able to continue his life as a free man in Ohio, albeit stripped of his American citizenship, until an appropriate government came forward to mete out justice - as Germany, two-thirds of a century after the war, finally did this month.