The Demjanjuk verdict in historical context

The Demjanjuk verdict in historical context

On May 12, 2011, a German court confirmed that while John Demjanjuk may not have been Ivan the Terrible of Treblinka, he most certainly was Ivan the Very Bad of Sobibor.

At first glance, the court’s finding that Demjanjuk had been complicit in the murder of 28,000 Jews at the Nazi death camp of Sobibor appears to be merely another milestone in over three decades of legal proceedings against the now 91-year-old Ukrainian born former Cleveland auto worker who had become a naturalized US citizen in 1958 after immigrating from Germany in the early 1950’s. Initially identified in 1977 as a notorious prison guard at Treblinka known as “Ivan the Terrible,” Demjanjuk was stripped of his US citizenship in 1981, extradited to Israel in 1986, and tried in Jerusalem over the course of 17 months. In April of 1988, the trial court returned a guilty verdict and sentenced him to death. On July 29, 1993, Israel’s Supreme Court overturned his convic- tion on the ground that even though it was clear that Demjanjuk had been a guard at other Nazi concentration camps, newly obtained evidence raised doubts as to whether he had been the Treblinka guard in question.

When the Israeli authorities declined to prosecute him a second time, Demjanjuk returned to the United States where his US citizenship was restored. The US Justice Department’s Office of Special Investigations then filed a new complaint against him, this time charging him with having been an SS guard at Sobibor and two other Nazi concentration camps, Majdanek and Flossenbürg. In 2004, the Sixth Circuit Court of Appeals held that the government had “sustained its burden of proving through clear, unequivocal and convincing evidence that [Demjanjuk], in fact, served as a guard at several Nazi training and concentration camps during World War II.”

Five years later, after numerous additional legal proceedings and maneuverings, Demjanjuk was again extradited, this time to Germany where his most recent trial began on November 30, 2009. Leaving no uncertainty as to the ultimate nature of the defendant’s guilt, Presiding Judge Ralph Alt point- ed out in the Munich court’s sentence that Demjanjuk, like every other guard at Sobibor, “knew he was part of an organization with no other purpose but mass murder.”

To understand the true significance of Demjanjuk’s conviction, however, one must go back in time more than six decades to a declaration and a speech.

On November 1, 1943, in what has become known as the Moscow Declaration, President Franklin D. Roosevelt, British Prime Minister Winston S. Churchill and Soviet Premier Joseph Stalin formally and publicly gave notice that those responsible for the “atrocities, massacres and cold-blooded mass executions which are being perpetrated by Hitlerite forces in many of the countries they have overrun” would be pursued “to the uttermost ends of the earth,” and delivered “to their accusers in order that justice may be done.”

Fast forward one and a half years to April 13, 1945, when US Supreme Court Justice Robert H. Jackson delivered a speech in Washington, DC before the American Society of International Law warning against any pro forma show trials of “war criminals, either high or humble” in which a finding of guilt and the defendants’ eventual execution was preordained. “We must not,” he said, “use the forms of judicial proceedings to carry out or rationalize previously settled political or military policy.” Specifically, Justice Jackson argued that, “You must put no man on trial before anything that is called a court, if you are not prepared to establish his personal guilt.”

A delicate balancing of the respective spirits behind the 1943 Moscow Declaration and Justice Jackson’s speech has characterized the prosecution of war crimes ever since. While all who commit atrocities such as acts of genocide and other crimes against humanity should be brought to justice, they must not be deprived of the fundamental safeguards inherent in all civilized legal systems.

The Third Reich leaders charged with war crimes and crimes against humanity before the International Military Tribunal at Nuremberg were represented by counsel and given every opportunity to both testify on their own behalf and present a substantive defense. This was also the case for more than 1,700 defendants, including the SS personnel at Bergen-Belsen, Dachau, Buchenwald and other Nazi concentration camps, in over 500 other trials conducted by the American and British military authorities in Germany during the post-war years.

Other prominent Nazis and their collaborators, most notably Adolf Eichmann in Jerusalem, Klaus Barbie and Maurice Papon in France, and Treblinka commandant Franz Stangl in Germany, were similarly afforded every opportunity to establish their innocence before being convicted for their role in the genocide of European Jewry. So were more “humble” Nazi war criminals, to use Justice Jackson’s term, such as the 22 members of the Auschwitz adminis- tration who sat in the dock in a Frankfurt courtroom from December 1963 until August 1965.

In this context, Demjanjuk’s conviction validates Justice Jackson’s faith in the judicial process. Accused of taking part in the perpetration of crimes against humanity, Demjanjuk was not subjected to arbitrary vengeance or punishment but was instead allowed to avail himself of the fundamental protections provided by the courts of three separate countries. When the evidence against him seemed less than conclusive with respect to his having been Treblinka’s Ivan the Terrible, he was given the benefit of the doubt. In the end, however, he was unable to escape the verdict of either justice or history. As Rudie S. Cortissos, whose mother was murdered at Sobibor, observed, Demjanjuk “is a small fish. But whether you are a whale or a sardine, someone who went wrong this way should be punished.”

(Menachem Z. Rosensaft is Adjunct Professor of Law at Cornell Law School, Distinguished Visiting Lecturer at Syra- cuse University College of Law, and Vice President of the American Gathering of Jewish Holocaust Survivors and Their Descendants.)