The trial against suspected concentration camp guard John Demjanjuk
is a legal first for Germany. For the first time, a person
who was low on the chain of command is to be indicted,
even though there is no proof of his having committed a
specific offence. Other alleged henchmen have gotten off
far more lightly.
The court stipulated that they were not to mention so much as a word about the
case. Instead, Vera Demjanjuk, 84, told her husband
John, 89, what she had planted in their garden
at home. The telephone conversation, which lasted
20 minutes, was the only conversation to date
between the Stadelheim Prison in Munich and Cleveland,
Ohio. An official interpreter listened in on
the conversation. "She hopes and believes that he will somehow return home," says John Demjanjuk, Jr., the couple's son.
That is unlikely to happen. His father is being detained in Bavaria, waiting
for his trial to begin. US authorities deported
Demjanjuk in early May, when he was flown to
Munich on a chartered flight. When he arrived,
a German investigating judge handed Demjanjuk
the arrest warrant, which stated that the accused
was "under strong suspicion" of aiding and abetting the murders of at least 29,000 people.
Demjanjuk is alleged to have worked as a guard in the Sobibor death camp in 1943
and to have helped the Nazis commit mass murder
against thousands of Jews. He has repeatedly
denied the charges and his family insists that
it is the victim of a prosecution-obsessed justice
system.
On July 3,
prosecutors said doctors had determined that
Demjanjuk, who has been held in custody in Munich
since May 12, was fit to stand trial. However,
they imposed one condition, saying that his court
appearances be limited to two 90-minute sessions
a day. State prosecutors said that formal charges
could be expected this month and that a trial
could commence as early as the autumn.
The case against
this alleged member of the SS is a first for
the German legal system. For the first time,
a foreign henchman from the lowest rung of the
chain of command will be prosecuted, not because
of his particularly gruesome behavior as a perpetrator
of so-called "excessive acts," but because he helped to keep the killing machine running smoothly.
Proving that won't be easy. Will the prosecution in the case, the Munich public
prosecutor's office, be able to provide sufficient
proof of his guilt? Can it demonstrate that he
participated voluntarily in the campaign of murder?
A number of documents suggest that Demjanjuk was part of a group of about 5,000
foreign helpers -- people from the Baltics, Ukrainians
and ethnic Germans living in other countries
-- that the Nazis trained at the Trawniki camp,
east of the Polish city of Lublin, to commit
mass murder in occupied regions. Nevertheless,
there is no evidence that Demjanjuk killed out
of murderous intent or greed. Instead, he was
probably an ordinary henchman, like thousands
of others. But German courts have been extremely
lenient in the past when it has come to putting
these Nazi helpers on trial. In fact, even their
superiors almost always got off lightly.
In other words,
the judiciary is planning nothing less than a
radical break with a decades-long practice which
was often perceived as offensive.
Responding
to a complaint against Demjanjuk's detention
filed by his attorney Ulrich Busch, the Munich
Regional Court explained that the established
practice of German courts in cases relating to
SS overseers and guards in extermination camps "does not create a precedent." In the arrest warrant, it states that Demjanjuk, as a guard, was not compelled
to participate in mass murder. "He could have deserted, as many other Trawniki men did," is the argument in the warrant.
For Demjanjuk's
defense attorney, this line of argument "upends the entire postwar legal practice in Germany." The court must conduct its proceedings on the basis of evidence, and yet presumably
it also wants to avoid being accused of inaction
or perhaps even leniency toward former Nazis.
All of this creates the impression that the German
judiciary is using the Demjanjuk case, which
has become well-known because of its previous
history, to make up for past omissions.
Relatively
Safe
Demjanjuk,
a native of Ukraine, is not the first presumed
Nazi helper that the United States has deported
to Germany. More than 100 men have had their
US citizenship revoked for concealing their Nazi
past, and 27 of them ended up in Germany.
Dmytro Sawchuk,
for example, traveled to Germany voluntarily
in 1999 when he was about to be deported. US
investigators accused the man, born in Poland
of Ukrainian parents, of having participated
in brutal ghetto evacuations after being trained
in Trawniki, and of having supervised Jewish
forced laborers in the Belzec extermination camp
as they dug up thousands of bodies and incinerated
them. The public prosecutor's office in Heidelberg,
to which the case was assigned, terminated the
proceedings against Sawchuk after three years,
arguing that Germany could only prosecute the
case if the "Republic of Poland, as the criminal investigation authority principally responsible
for criminal prosecution," dispensed with extradition. Poland investigated the case itself, but later suspended
its investigation. Sawchuk died in 2004.
Liudas Kairys,
who also trained at Trawniki and was a senior
guard at the Treblinka camp, was a rank above
Demjanjuk's presumed rank in Sobibor. There was
a lot of evidence against him from survivors
and documents. He was sent to Germany in 1993,
as he had hoped, after US authorities revoked
his passport. From Kairys' perspective, it was
the right decision. Investigation proceedings
launched against the native Lithuanian in 1993
for murder were suspended six years later by
the prosecution in the western city of Darmstadt.
Kairys had died in the meantime.
In February
1982, the US attorney general asked his counterpart
in Bonn for a stronger commitment. He wanted
Germany to petition for the deportation of Nazi
collaborators from Lithuania, Ukraine and Latvia
who had been tracked down in the United States,
and put them on trial in Germany.
But Bonn's
justice minister turned down the request, arguing
that deportation was only allowable in the case
of crimes "that had been committed on the territory of the country submitting the request." And because of the statute of limitations, he argued, only murder cases could
be prosecuted anyway.
The former
Trawniki men living in Germany could also feel
relatively safe, as long as there was no evidence
of their having been Exzesstäter, in other words,
people who committed excessively cruel acts.
One such Exzesstäter was Treblinka guard Franz
Swidersky, who was sentenced to a seven-year
prison term in Düsseldorf. Another former guard
in Belzec, who had held the rank of Zugwachmann,
or platoon member, is spending his retirement
in an idyllic village in the German state of
North Rhine-Westphalia. He had testified about
the Nazi death camps in two trials, but he was
unwilling to talk about his experiences with
SPIEGEL.
Those at the
lower ends of the chain of command, and their
supervisors, invoked the principle of Befehlsnotstand,
a legal term applied to those who carried out
a criminal command because they would otherwise
have endangered their lives. The historian Jochen
Böhler characterizes the defense as being the
justice system's "top favorite for acquittals": Almost all of the accused alleged that they would have suffered if they had
refused to follow orders -- and that they had
only killed on command.
In the trials conducted in Hagen, West Germany, in 1965-66, against former SS
men who had served at Sobibor, only one defendant
was given a life sentence: Karl Frenzel, the
camp director, a gruesome sadist who had whipped
a dying prisoner and shot him personally. Five
defendants received prison terms of between three
and eight years, and five others were acquitted.
Karl Streibel, the commandant of the Trawniki training camp, was tried in a Hamburg
court from 1972 to 1976. He and five other defendants,
all senior members of the camp administration,
went unpunished. The judges argued that the Trawniki
trainers had not been aware of the purpose for
which they were training the foreign workers
-- a somewhat dubious interpretation of their
tasks.
If it was
already so difficult to bring the men who had
been higher up the chain of command to justice,
then how are the courts expected to deal with
a man like Demjanjuk, a captured member of the
Red Army who was apparently recruited by the
SS in 1942?
The Trawnikis
-- as the men trained at the camp of that name
are known -- were undoubtedly among the "most notorious offenders of World War II," says Hamburg historian Frank Golczewski. Many profited shamelessly from the
death camps, using money and gold taken from
the murdered prisoners to pay for sex with women
in the surrounding villages.
And yet, says
Peter Black, chief historian at the Holocaust
Museum in Washington, DC, one cannot conclude
that these men volunteered to commit mass murder.
The conditions in the Nazi prisoner-of-war camps
were so horrific, according to Black, that the
men "had limited options." The non-German volunteers were at the lowest end of the hierarchy. If they refused
to cooperate, says Black, "they could be shot on the spot," at least until the spring of 1943.
Helge Grabitz,
a well-known Hamburg criminal prosecutor who
has since died, also believed that the Trawnikis
were "coerced." They volunteered, according to Grabitz, "to escape certain death from starvation, freezing to death or epidemics in the
camps." The "proven inhuman atrocities" could hardly be attributed to individual offenders, she wrote, making criminal
prosecution "relatively difficult."
Neither Canada
nor Britain nor Australia managed to convict
former Trawnikis who had immigrated to those
countries.
In the Demjanjuk
case, Germany now hopes to improve on that record,
while at the same time establishing stricter
benchmarks.
Decades of
Failure
Nevertheless,
investigators are dealing with a case overshadowed
by 30 years of failure on the part of jurists
on several continents. "Germany stumbled into these matters," says Demjanjuk's son, John Jr. The senior Demjanjuk has been "paraded through a variety of countries like a dancing bear," says Ed Nishnic, Demjanjuk's former son-in-law. Nishnic fears that the German
proceedings will amount to a "show trial," as has already happened once before.
In 1987, Demjanjuk
was put on trial in Israel after being extradited
by US authorities. Survivors of the Treblinka
death camp had recognized him in a photograph
and identified him as a guard nicknamed "Ivan the Terrible." Even in Treblinka, a hellish place where 900,000 people died, the guard had
stood out as a monster. He used his bayonet to
slice off the breasts of doomed women, and he
started the motor from which the exhaust gases
were piped into the gas chambers.
But the case
ended in an acquittal on appeal, after a lower
court had already sentenced Demjanjuk to death
by hanging. A TV reporter for the American CBS
network tracked down a woman in a village near
Treblinka who admitted to having been a lover
of Ivan the Terrible. The woman claimed that
the sadistic guard's surname was Marchenko, and
both guards and survivors from the camp later
confirmed that this was true. The Israeli prosecutor
Michael Shaked found evidence in Russian and
German archives that destroyed his own case.
The survivors had been mistaken. Demjanjuk was
not Ivan the Terrible.
In 1993, after
several years in solitary confinement, he was
acquitted and returned to the United States,
which reinstated his citizenship, setting a precedent
in the history of American public administration.
It was a bitter
setback for the US Justice Department. Its Office
of Special Investigations (OSI), created in 1979 "to investigate and prosecute participants in World War II-era acts of Nazi-sponsored
persecution," had spearheaded Demjanjuk's extradition to Israel. Now the OSI investigators
were forced to admit, in a court investigation,
that they had "acted on a preconception" and had "deceived" the courts by withholding two pieces of testimony and a list of camp guards
that documented the true identity of Ivan the
Terrible.
But the OSI
won the next round in the decades-long legal
battle, and Demjanjuk lost his US passport once
again. Ukraine and Poland refused to accept Demjanjuk.
But then the Germans stepped in. A few months
later, investigators in the southwestern city
of Ludwigsburg began conducting their research.
The prosecution
in Munich has now inherited a host of old files
containing contradictory opinions and snippets
of source materials that have been analyzed again
and again. The allegations are based exclusively
on documents; potential witnesses are long dead.
The only man still alive who believes to have
identified Demjanjuk claims that the two men
worked as guards together at the Flossenbürg
concentration camp in Bavaria.
Although inmates
there also died horrible deaths, Flossenbürg
is unimportant to the prosecution. They are focusing
on Sobibor, which was purely an extermination
camp. Anyone who was assigned to Sobibor, the
prosecutors argue, was automatically an accessory
to murder.
The evidence
of Demjanjuk's presence in Sobibor are long known.
Chief among them is his SS identification card,
which bears the number 1393. And then there is
the testimony of Ignat Danilchenko, a Soviet
Trawniki who is now dead, who testified against
Demjanjuk in 1949 and 1979. Danilchenko claimed
that he had seen Demjanjuk, an "experienced and efficient guard," driving Jews into the gas chambers at Sobibor, and that this was his "daily work." Demjanjuk's name also appears on a roster of guards being transferred from Trawniki
to Sobibor.
The defense,
which will attempt to call the documents into
question, sees an abundance of potential holes
in the prosecution's case. For instance, the
Munich public prosecutor's office neglected to
have the SS identification card, which has already
been examined multiple times, subjected to forensic
analysis one more time in Germany. In March,
experts with the Bavarian State Office of Criminal
Investigation concluded, after a relatively superficial
examination of the document, that it is "possible" that the ID card is genuine. This weak conclusion will hardly suffice to conclusively
discredit theories that the card was forged.
Demjanjuk's defense attorney has uncovered a third statement by the witness Danilchenko
that contradicts his other testimony. In 1947,
Danilchenko claimed that he had spent most of
the war in a German hospital near Rivne in western
Ukraine. There is no mention of Sobibor, although
by mentioning Sobibor Danilchenko would also
have incriminated himself.
This example illustrates the back-and-forth of petitions and defense pleas that
will likely dominate the coming days and weeks.
Nazi war crimes trials tend to be exhausting
and drawn-out affairs -- as well as being a delicate
issue. The defendants can easily be portrayed
as pitiful old men who are being mercilessly
pursued.
This effect
could also materialize in the Demjanjuk case,
the more it becomes evident that he is to atone
for a crime for which many others escaped punishment.
Even the investigators now concede that "Demjanjuk was unlucky."
That is one
side of the truth. But German historian Norbert
Frei points to another side of the truth that
prosecutors can hardly ignore, despite their
justifiable objections. "The Germans owe it not just to the victims and the survivors, but also to themselves,
to prosecute Demjanjuk," he says.
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