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‘The last great Nazi trial’

John Demjanjuk’s trial in Munich may mark the end of an era


 

'The last great Nazi trial'It is being touted as the last great Nazi trial. In November, John Demjanjuk—now first on the Simon Wiesenthal Center’s list of most-wanted war criminals—will appear before a Munich court. He is charged with 27,900 counts of accessory to murder for his role as a guard at the Sobibor death camp in Nazi-occupied Poland. Demjanjuk is 89, and those in favour of prosecuting him feel a sense of urgency. “It’s a race against time,” says Michael Scharf, a law professor at Case Western Reserve University who has worked on the trials of Saddam Hussein and Slobodan Milosevic. “They’re trying to close the book on justice before [his] life ends naturally.”

For the most vehement advocates of prosecution, it has been an agonizing wait. Demjanjuk moved to the United States soon after the war, and was able to live quietly for 25 years before evidence of a darker past was unearthed. In the 1980s, he was brought to trial, but his conviction was later overturned on grounds that he had been mistakenly identified as “Ivan the Terrible,” a notorious sadist at Treblinka death camp in Poland. Only in 2000 was another investigation initiated; even then, nine more years passed until German officials issued a warrant for his arrest. In May of this year—some 30 years after the process began—he was deported to Germany, where his trial will begin on Nov. 30.

Given the passage of time, it may well prove to be the final major set piece in the intense six-decades-long process of bringing former Nazis to trial. As such, Demjanjuk’s pending appearance in court, after so many hurdles, is being applauded by some. “To have the last big Nazi trial in Germany,” posits Christoph Burchard, law professor at the Universität Tübingen, will “show to the world that Germany can do it.” Still, as the opening day looms, others are uneasy. The current image of Demjanjuk—aged, wheelchair-bound, and cancer-ridden—is far removed from that of the archetypal Nazi demon of popular culture. That gap was clear in May when reporters gathered at the Munich airport as Demjanjuk’s plane flew in, only to snag photos of a frail man being carried onto German territory on a stretcher. It was clear again when Demjanjuk was first brought to Munich’s Stadelheim prison, and transferred not to a cell but to a medical unit.

His family, fighting to have charges against him dropped, released footage that showed Demjanjuk moaning through a medical examination—clearly in a great deal of pain. The U.S. Justice Department fired back with secret footage of Demjanjuk walking capably and getting into a car unaided. Then again, everything about this case, and not just the extent of the accused’s currently frailty, is contested. Demjanjuk, a former Red Army soldier who was captured by the Germans, says he was nothing more than a prisoner of war. The authorities claim he volunteered to serve as a Nazi concentration camp guard—and that justice should be served no matter how much time has passed.

But for others, the gravity of the charges is not enough to justify this legal process. To these critics, the trial of the near-decrepit John Demjanjuk—who slumped down in his wheelchair and breathed heavily through a nasal tube as the charges against him were read in court—is bringing a once-purposeful legal process to a pathetic end.

That an era is drawing to a close is not in doubt; the passage of 60 years has made sure of that. There will be other trials: three alleged ex-Nazis, for instance, were recently indicted by Spain for their role as concentration camp guards. But time is running out. “Back then—an impossibly long time ago—these men who are now pushing 90 were in charge of keeping ‘peace and quiet’ in the slaughterhouse of world history,” wrote the German newspaper, Süddeutsche Zeitung. “Today they’re fragile, doddering and deaf.”

The stage was set in 1945-’46, when the first Nazi trials opened in Nuremberg, Germany. The first of the series of tribunals, orchestrated by the Allies, brought charges against 24 of the most important surviving Nazis—like Albert Speer, minister of armaments and one of Hitler’s closest friends. It also marked the first time that war criminals were tried before an international tribunal. For this reason, Nuremberg is often seen as the birthplace of modern international law. Only through those trials did the terms “crimes against humanity” and “genocide” become legally significant.

But after the highest-ranking Nazis were dealt with, says Caroline Fournet, law lecturer at the University of Exeter, there was a kind of “pause.” Across Europe, the myth of the Resistance dominated, with many refusing to own up to their at least tacit collaboration with German occupiers. And within Germany, there was little enthusiasm among the public for turning friends and family over to authorities—not to mention the problem of the thorny political overlap between the Nazi regime and what followed. Reinhard Gehlen, for instance, rose to fame during the Second World War as chief of eastern front intelligence for the Third Reich. But after the war he was put in charge of the West German Federal Intelligence Service (BND), which he staffed with ex-Nazis.

In the ’60s, though, largely because of Israeli efforts, the process picked up steam. “Many scholars,” says Fournet, “have identified the Eichmann trial as the turning point.” Adolf Eichmann, known as “the architect of the Holocaust,” managed the logistics of the Final Solution: namely, he scheduled the trains carrying Jews to extermination camps. In 1960, Israeli Nazi-hunters found him in Argentina and brought him to Israel, where he was convicted of crimes against humanity and war crimes—and hung in 1962.

The Eichmann trial, Fournet says, set the bar for what would not be accepted as a valid courtroom defence. The crux of Eichmann’s argument was that he had indeed committed crimes—but only because he was following orders. Since that defence was rejected in Eichmann’s trial, says Fournet, it has rarely been accepted. The trial was also a landmark in the establishment of “universal jurisdiction” over genocide. Eichmann was a German whose crimes were committed before the state of Israel even came into existence. But the Israeli court ruled that Nazi crimes were violations not only of state, but of international law; thus, Israel deemed itself competent to try him—a precedent that held.

Germany soon started to prosecute former Nazis as well, beginning with the Auschwitz trials of 1963-’65 that saw 22 ex-guards and officials from the Auschwitz-Birkenau concentration camp complex brought to justice. At the vanguard of this homegrown crusade was Germany’s Central Office for the Investigation of Nationalist Socialist War Crimes, set up in 1958 (it would later build the unfolding case against Demjanjuk).

Still, many of the groundbreaking Nazi prosecutions—of Eichmann, Klaus Barbie, Maurice Papon—were conducted by foreign courts. This is why, for some, Demjanjuk’s November trial is a token of a broader shift. “Germany has really changed,” says Michael Scharf. “It has a new interest in prosecuting war criminals—not just from the Nazi era but also Rwandans and Cambodians and Sierra Leoneans and Bosnians.” Adds David Crowe, professor of history at Elon University in North Carolina and president emeritus of the Association for the Study of Nationalities at Columbia University: “A lot of it is generational. Older Germans wanted to dismiss their wartime legacy. The younger generation of Germans want not to forget.”

But after more than 60 years of prosecutions, what remains? In a strictly legalistic sense, the relevance of further trials is waning; with so many having taken place, they are unlikely to set new legal precedents. The trials have also lost much of their symbolic aura, and many have come and gone quietly—such as that of Josef Scheungraber, found guilty in August for the murder of 10 civilians in June 1944. Much of the hype around Demjanjuk centres on his much-touted new title, No. 1 on the Simon Wiesenthal Center’s list of most-wanted Nazi criminals.

“That’s me—I said that,” laughs Efraim Zuroff in Jerusalem, the SWC’s chief Nazi-hunter. “I’m the Simon Wiesenthal Center.” He speaks playfully of his title, but Zuroff is indeed charged with the weighty task of ranking targets for the Jewish human rights organization. But Nazi-hunting has “dropped low on the priority list” of the SWC, says Zuroff. His annual budget, he estimates, including “the office, salaries, everything,” is $200,000. “Believe me, it’s a very modest sum.” Zuroff describes his traditional work, which helped bring hundreds of Nazis to trial, as “one-third detective, one-third historian, one-third political lobbyist.” Now he spends far less time searching for Nazis, and more time urging reticent governments to prosecute Nazis who have already been located. “There are some cases where I’m 100 per cent political lobbyist. Because that’s all I can do.”

The oft-quoted tenet of Zuroff’s work is, “The passage of time in no way diminishes the guilt of the killers.” Overall, though, justice has often not been done. Many cases against ex-Nazis and collaborators were never carried through to a conviction. According to the German central office, it has conducted over 113,000 preliminary interviews; of those, only 7,377 have been passed along to prosecution services. Christoph Safferling, director of the Research and Documentation Center for War Crimes Trials at Philipps-Universität Marburg, estimates that around 6,400 have been convicted.

Some now argue that the whole process should be put to rest. For these critics, trying old men for half-century-old crimes is simply an exercise in futility. “If he’d been Ivan the Terrible of Treblinka then he would have been somebody pretty special,” says Christopher Browning, professor of history at the University of Wisconsin-Madison. “But a guy who worked in a series of camps in which we don’t know what he really did?” Others identify more pressing concerns. During the 1994 French trial of Paul Touvier, charged with ordering seven Jews murdered in 1944, France’s intellectual elite rallied against the indictment, insisting that a trial involving the wartime Vichy regime would divert attention away from contemporary war crimes in Yugoslavia. “What good does it do to express one’s disgust over Vichy,” wrote philosopher Alain Finkielkraut, when the French are “Vichyites in our dealings with the victims in Yugoslavia?”

And, clearly, the process is no longer driven by any popular outcry. “I don’t think the people are asking for it,” Efraim Zuroff concedes of the Demjanjuk trial. “I think people in Germany recognize the importance and they’re in favour of it, but it’s not as if there’s a groundswell of popular opinion.” So why now—especially given that, according to Zurroff, Germany could have taken charge of the Demjanjuk file years ago? “I presume it was a political decision,” says Christoph Burchard. “To have the last big Nazi trial in Germany.”

The man at the centre of this “last great Nazi trial” was born as Ivan (later John) Demjanjuk in 1920 in Ukraine. Since most of Ukraine had become a Soviet republic after the First World War, Demjanjuk was drafted into the Red Army to fight against the Germans in the Second World War. “You had no choice,” explains David Crowe. “If you were a young male, you were forced to participate.” In 1942, he was captured and became a German prisoner of war. And that, says Demjanjuk, is where the story ends. In his version, he simply languished during his wartime years as one of many German POWs.

Evidence suggests otherwise. According to prosecutors, Demjanjuk was sent to an SS training camp in Trawniki, Poland, after volunteering to work as a guard for the Nazis, who were then well on their way to killing most of Poland’s three million Jews. Later, he served at three German-run camps on Polish soil. One of them was the Sobibor death camp, described by the U.S Office for Special Investigations as “as close an approximation of hell as has ever been created on this planet.”

Did he have a choice? Crowe, for one, cautions those who defend Demjanjuk’s alleged defection to the Nazis on the basis that he may have been coerced. POWs suffered extreme brutality in German hands, Crowe concedes, but Demjanjuk “had a choice. There were an awful lot of Russian and Ukrainian POWs who did not volunteer. You had to make a substantial moral decision to be a turncoat against your own side.” Crowe says that Demjanjuk willingly underwent aggressive Nazi training, and continued working at Sobibor—rather than escaping, as others did. “He was both victim and participant in German war crimes,” the Berliner Zeitung has written. “But that doesn’t excuse him.”

After the war, Demjanjuk registered as a “displaced person” in Germany. In 1952, he immigrated with his wife and young daughter to the U.S. Soon, the new Americans settled into a quiet suburb of Cleveland, Ohio, and Demjanjuk found work as a mechanic at a Ford auto plant. He had another daughter and a son. Twenty-five years passed before the tide turned—and what followed was messy. “This is one of the most bizarre cases in legal history,” insists Scharf. “It’s a textbook case that I teach in my criminal law class of everything that can possibly go wrong in a trial.”

In 1975, Michael Hanusiak, editor of the New York-based Ukrainian Daily News, compiled a list of Ukrainians suspected of collaborating with Germans and presented it to what was then the U.S. Immigration and Naturalization Service. Demjanjuk was on that list. According to Crowe, the INS then turned to Israel for help. Israelis, in turn, made contact with Sobibor survivors, a number of whom identified Demjanjuk from an old photograph as Ivan the Terrible, a gas chamber operator at Treblinka death camp in Poland. Two years later, the INS filed the first charges against Demjanjuk, stripping him of his citizenship in 1981 and ordering him deported. In 1986, his last appeal was rejected and he was extradited to Israel to stand trial. In 1988, “Ivan the Terrible” was sentenced to death.

As it turned out, Ivan Demjanjuk was not Ivan the Terrible. And it was a thawing Cold War that granted him a short-lived break, when the collapse of the Soviet Union resulted in the release of files previously hidden by the KGB. New evidence proved that someone else was the more infamous Ivan. In 1993, Demjanjuk’s death sentence was lifted and he returned to the U.S. But only one year later, the Justice Department filed a new complaint. In 2002, Demjanjuk was denaturalized again, after a U.S. court accepted evidence he had served as a concentration camp guard. In 2008, his final appeal was rejected. And after German prosecutors decided they had enough evidence, including an SS identity card with a photo of a young, round-faced John Demjanjuk establishing him as a Sobibor guard—it was Germany who filed formal charges, issuing an arrest warrant in March 2009.

As well as bringing an alleged war criminal to justice, supporters of the trial also hope that it will “throw a spotlight on Hitler’s foreign helpers,” as the newsmagazine Der Spiegel has said. While the Germans, says David Crowe, were the principal authors of the Final Solution, they were not its exclusive agents: “There’s no way the Nazis could have formed [their] mass system without using [foreigners] who volunteered.” The subject of Red Army POWs becoming Nazi guards, he says, is “one of the non-topics in Holocaust studies that has not been dealt with adequately.”

Others hope the trial will bring attention to the Operation Reinhard concentration camps—Belzec, Sobibor, and Treblinka—where Demjanjuk served and of which no physical evidence remains. These were set up in Poland by SS-Brigadeführer Odilo Globocnik, after he was “found with his hand in the till,” explains Robert Jan Van Pelt, a historian at the University of Waterloo, and sent to Lublin to “redeem himself—basically, creating his own empire.” Hence the Reinhard camps “were outside of the general concentration camp system,” relying heavily on Ukrainian guards. Although Auschwitz has become the collective symbol for Nazi barbarity, more Jews were murdered in the Reinhard camps—about two million—than anywhere else.

Whether or not Demjanjuk’s case will cast light on lesser-explored annals of Holocaust history, it is clear that the upcoming trial will be legally fraught. For one thing, as Christopher Browning explains, German law makes a distinction between the charge of murder, with no statute of limitations, and killing, which has an expiry date. The lesser charge of killing requires only evidence that someone killed. But the German requirement for a murder-related charge, the only option open to prosecutors in this case, “is that it was committed with a certain mindset. It has to be committed out of a very base motive of hatred,” Browning says. Demjanuk has been charged with what Browning describes as “extreme accessory to murder,” but lawyers will have to prove that he acted with heightened cruelty. “How they are going to prove something like that for Demjanjuk,” Browning ponders, “I just don’t know.”

“Charges like crimes against humanity or genocide would be better suited,” offers Christoph Burchard. But such a category did not exist during the Second World War, so under German law it cannot be retroactively applied. In fact, the very grounds for trying Demjanjuk in Germany are tenuous. He was a Ukrainian who committed crimes in Poland, and Burchard stresses that while Germany has universal jurisdiction in cases of crimes against humanity, that does not apply to murder charges. To reinforce their jurisdiction over the case, Burchard speculates that prosecutors will try to portray Demjanjuk as a kind of “German public official.” That may be a tricky designation for an ex-POW working outside the mainstream Nazi machinery.

But the root of the problem comes down to the simple fact that time has muddied the evidentiary waters. Many of the lawyers involved in the trial had not even been born at the time of the war. And while witnesses will be summoned to Munich, they may not be able to specifically identify Demjanjuk. Indeed, as Van Pelt points out, Demjanjuk’s exact role at Sobibor can never be known; rather, lawyers will have to extrapolate from what is known, generally, about Ukrainian guards at the time. “These were very low-ranking people,” Van Pelt says, with no “nicely laid out contract stipulating exact duties.” Even the number of reported victims in the charge—27,900—is debatable: it conceivably includes those killed while Demjanjuk was not on watch.

When it’s finished, what will have been gained? From a historical and legal perspective, very little: “There have been so many Demjanjuk trials already,” says Van Pelt. “A criminal trial about what Demjanjuk did or did not do in 1942 and 1943 is going to teach us, if we’re lucky, a little bit more about Demjanjuk. But the trial will be a footnote in the historiography of Sobibor.” Adds Scharf: “The only thing that makes the trial unique is that it’s taken 30 years from the time he was first requested for extradition.”

The Munich state court has set 35 court dates, which are from November to May 2010. According to doctors who examined him, Demjanjuk can only appear for two 90-minute sessions each day. And so, until Nov. 30, the ailing Demjanjuk waits, reportedly in a spacious cell measuring 24 sq. m. “I honestly thought he would die in Cleveland,” professes David Crowe. Such a possibility weighs on Efraim Zuroff. “I worry about it every day that goes by,” the “world’s last Nazi-hunter” says. “I pray for John Demjanjuk’s health every day. Believe me.”


 

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