Demjanjiuk - Munich II

A fundamental principle of Western jurisprudence is individual responsibility for one's actions. In criminal law, this requires that the charges against the accused, and the accused’s responsibility for the crime, must be proven beyond a reasonable doubt. In the Demjanjuk case there was no finding of individual culpability, there was instead, a PRESUMPTION of it. There was no finding of voluntariness, there was instead, a PRESUMPTION of it.

That is why this case was a show trial, not a real trial.

Let us be clear. No sensible human being denies the facts of the Holocaust, the loss of 6 million Jewish lives or their suffering, nor the turmoil initiated by Nazi Germany that resulted in the loss of some 50 million lives in World War II. What is being questioned, however, is the role Demjanjuk played in all that.

One of the great attributes of the jurists at Nuremberg was their insistence that the accused have the ability to fairly defend themselves according to the rule of law and legal principles. Though flawed in some ways, such as its failure to prosecute even one Allied war crime, the involvement of a Soviet prosecutor and its attempt to shift the blame for the Katyn Forest massacre of Polish Officers on to the Germans, still, even with such deficiencies noted, the Nuremberg trials sought to abide by the rule of law and to find the accused guilty of INDIVIDUAL responsibility for the crimes committed. Unlike in the Demjanjuk case, in the case of the Nuremberg defendants, there was no doubt about their identity, there was no doubt about their presence where the events took place and there was little doubt about their personal involvement.

The essence of MUNICH II (i.e. the Demjanjuk trial) was to create a stage on which victims of the Holocaust could have another opportunity to present their stories and, at the same time, remind the world of the principal reason for the creation of the Jewish State of Israel, namely, so that never again will any Jew ever lack for a place of refuge. At least the Jewish witnesses involved in the trial and their families seeking a sense of closure as victims of an horrific crime were pursuing a noble purpose, albeit through what was an ignoble means. This cannot be said for Germany, however. For Germany, this was a crass and opportunistic attempt to cleanse itself of some of its blame for the Holocaust by diverting it on to non-Germans.

In short, MUNICH II was a place where the rule of law was sacrificed for the sake of political expedience. So certain of Demjanjuk’s guilt were the accusers that there was no need for evidence. It was simply PRESUMED.

Thus, for example, there was no extradition to Germany, but merely deportation from the United States. Why bother with procedural technicalities even if it was a criminal matter and not citizenship?

The existence of doubt about the legitimacy of the Trawniki ID card because of Soviet KGB secret police involvement raised by recently discovered FBI report, was simply dismissed by the court. That matter had already been decided by the court earlier, so why raise it again?

There was no finding of Demjanjuk’s personal involvement in harming anyone. Why bother, that can be inferred on the argument that since Sobibor was a death camp, anyone there was guilty. But can it? Not according to the Holocaust Archive and Research Team who, on their web site, list Erich Lachmann, Heinz-Hans Schutt, Heinrich Unverhau, Robert Juhres, Ernst Zirke, or Erwin Lambert – as former Sobibor guards who were acquitted.

There was no doubt raised about the reliability or voluntariness of a statement made to the KGB Soviet secret police during an interrogation of Danylchenko, a former Sobibor guard, who claimed to have seen Demjanjuk in the camp. When we need to, we can ignore the history of iniquity of the Soviet KGB. Or can we?

There was no clear evidence of volition on the part of the accused, even IF he was in Trawniki (whose camp Commandant SS Captain Karl Streibel, incidentally, was acquitted of all charges), and even IF he was in Sobibor.

Whatever circumstantial evidence that was presented in the trial could not lead to a reasonable conclusion that Demjanjuk was guilty and no other - that being the standard of proof required in such circumstantial cases. Others who were in the same camp, German guards, as has already been mentioned, were absolved of guilt. If anything, the evidence supported a reasonable inference that he was innocent, even assuming he was in the camp, precisely because he was NOT German.

In short there was never any doubt because his guilt was simply PRESUMED.

Munich II was not a demonstration of the rule of law, but of the politicization of the law. How else could one explain the fact that based on the evidence to which the Munich prosecutor’s office evidently had access, they knew, or should have known, that Demjanjuk was not Ivan The Terrible, particularly since in the early 1970s the Soviets alleged he had been in Sobibor. Instead, they sat silently for two decades while his errant trial in Israel was reported on the front pages of all Western newspapers. Why didn’t the witnesses or prosecutors in Munich step forward to identify Demjanjuk then, not as Ivan The Terrible of Treblinka, but as they later claimed, Demjanjuk of Sobibor. Demjanjuk, who they claimed was an accomplice, to not just a few deaths, but to the deaths of some 27,900 people!

Imagine that. For over two decades a man allegedly responsible for the deaths of 27,900 people, a man whose name was on the front pages of every serious Western newspaper, was never even accused of these crimes until AFTER he was found NOT GUILTY of being Ivan The Terrible. Then, suddenly the Munich prosecutors awoke and realized, no, he was NOT Ivan The Terrible at all. No, instead according to them, he was actually a man who was responsible for 27,900 deaths in Germany. It was only then, over 60 years after these deaths, and despite the fact that he lived NOT in hiding but openly in Cleveland all that time, that they finally identified him as a camp guard at Sobibor.

And why not hold the trials in Munich, the city where Hitler held his beer hall putsch, where the Nazi party was founded, and where it was headquartered during the war — in Munich, the city that hosted the treaty of appeasement with Chamberlain and saw the murder of Israeli athletes at the 1972 Olympics — Yes, in Munich, to add to the political symbolism of the case.

But why bother to get so worked up about this case and an old man caught up in this historical vortex? The answer is because of German duplicity in the past and the abdication of a fundamental principle of criminal law that is now about to evolve.

After all, there was no shortage of Nazis to prosecute – no shortage of party members, Nazi government officials, army officers, camp commandants. Why, for example, didn’t Germany prosecute Reinhard Gehlen, the former Nazi chief of eastern front intelligence and the hundreds of other ex-Nazis he gathered in the West German Federal Intelligence Service (BND) that he headed after the war? Germany did not have the stomach to fully prosecute its own transgressors. In fact, its pursuit and conviction of its own Nazi transgressors has been not as impressive. Though German courts investigated over 100,000 cases, only some 6,500 accused were convicted and of these, most received rather light sentences. Furthermore, not long ago, Germany passed legislation that effectively provided an amnesty from prosecution for German Nazis, including SS concentration camp commanders and their German subordinates. But the amnesty did not include Untermenschen like Demjanjuk. And now, latching on to what is coming to be regarded as the “Demjanjiuk precedent”, according to a recent article in the Huffington Post, German prosecutors are about to launch other cases based not on the principle of individual responsibility, but on the basis of guilt by association – guilt by presumption based on the defendant’s alleged mere presence when hideous crimes took place.

The cost of MUNICH II has been that the German judges have once again crossed the same line that Nazi Judges crossed in the 1930s – ignoring basic principles of the rule of law. Back then, the result led to the collapse of the rule of law in Nazi Germany, the outbreak of World War II, the deaths of some 50 million people, and finally ending after the war with the conviction of those same Nazi judges at Nuremberg.

For these reasons, Demjanjuk’s trial was so outlandish, so irregular, and so aberrant that anyone familiar with the norms of the rule of law and the rights afforded ordinary citizens in a free and democratic society should have been and should now be protesting the whole process, instead of celebrating its conclusion. In short, this case was not about the trial of Ivan Demjanjuk. It was about the trial of modern-day Germany, and by extension, since this all started there, of the United States. The verdict is not flattering and I, for one, cannot hold my head high and claim there was a victory. As for the new attempt to prosecute old alleged Nazi war criminals based on this faulty precedent, let them be tried according to the principle of proven individual guilt beyond a reasonable doubt – not because we want them to be saved, but because we want to uphold the principles at the root of any society based on the rule of law.

Andriy J. Semotiuk is an attorney practicing in the area of international law focusing on immigration. He is a member of the bars of New York and California in the United States and Ontario and British Columbia in Canada. A former United Nations correspondent who was stationed in New York, Mr. Semotiuk now practices law and resides in Toronto.

Answering Immigration Questions

Response to June 6th, 2011 LA TImes Immigration Article

In his LA Times article today Jacob Vigdor compares Canada's immigration policies favourably to those of the United States contending that Canada's focus on skills and education rather than country quotas and family ties makes the difference. He then goes on to mistakenly conclude that unlike the US, Canada recognizes dual citizenship.

Vigdor is correct in his assessment of the relative importance of family reunification in U.S. compared to Canadian immigration law. This was the subject of criticism of the government during the recent Canadian election when the Canadian party leaders and contenders for Prime Minister criticised current Prime Minister Steven Harper for failing to adequately deal with the long backlog of parents and grandparents of Canadian families who have applied to sponsor them to immigrate to Canada. The Prime Minister argued that for Canada as a whole, what came first, was the economy and filling jobs that were critical to the well being of Canadians. Family members would have to wait.

As Vigdor's article points out, the recession has had a heavy influence on immigration in both the US and Canada. The fact that there are 13 million people unemployed in the US has tightened the screws on all US immigration programs making it that much more difficult for foreign workers to find ways to come to work in the USA. The starting point for work permits for foreign workers, apart from outstanding individuals like the Wayne Gretzkys or Celine Dions of this world, is a job offer from an American employer. US policy is that effectively the foreign worker must have an American bachelor's degree or equivalent in a hard-skills or practical area of work, to gain approval for a work visa. Thus, professionals are able to enter without difficulty, but someone with a BA in fine arts might have a hard time. The US is weak, however, when it comes to enabling the blue collar skilled or semi-skilled workers to enter since the cost and timing of getting a work visa in this area is prohibitive.

Canada, on the other hand, is easier to work with for blue-collar skilled and semi-skilled foreign workers. They also need a job offer to start. But if they have an offer, Canadian immigration policy does provide options for them to come to Canada to work unlike those in the USA since the timing and cost are not as significant. Canada has a better approach to foreign students in enabling them to gain work experience and then settling in Canada though its Canadian Experience Class program than does the USA. Furthermore, Canada's federal skilled worker program provides certain foreign workers whose skills are in high demand in Canada, at least in 29 key areas, the opportunity to self-petition their way into the country without a sponsoring employer petitioner. Canada's caregiver program is far better than anything the USA has to offer in that field. Finally, unlike in the USA where immigration is a federal matter, Canada as provincial immigration programs that offer a plethora of options for workers and business immigrants facilitating their applications by fast-tracking them through the process.

Both the US and Canada have investor programs. However, the US EB5 program is better in that processing times are in the one-year range and the programs offer much more variety and a lower investment threshold ($ 500,000 compared to Canada's $ 800,000) to qualify. However, because the US program is run by private sector regional center projects that entail commercial risk and require investment of about four years, the Canadian federal and Quebec as well as other provincial programs are more secure since in these cases the funds are kept by the governments involved and repaid at the end of five years. The choice between the US and Canada boils down to how fast you want to get in - one year in the US as compared to probably many years in Canada, how much you are prepared to invest, and how sensitive you are to risk of loss.

To conclude, neither country's legal immigration programs are that bad - so far as they go. What is bad is that illegal immigrants, 13 million in the USA, and as many as 140,000 illegal immigrants in Canada, have entered because the legal programs were not working well enough. What is needed is for both countries immigration policies to reward people for undertaking the legal route and punishing those who attempt to immigrate illegally.

Trouble With Canada's Immigration System

Over six years ago I was retained by physician, from a top California hospital and one of their leading surgeons, to prepare and submit an immigration application on his behalf as a skilled worker to come to Canada. The application was normal in all respects other than that physician was born in Egypt but later came to the United States. In the course of the time that the application has been pending at the Canadian Consulate in Buffalo, the physician and his family applied for, were approved and obtained U.S. citizenship. Meanwhile the Canadian application has been held up for reasons that have not been disclosed to us other than a 2006 the Canadian Consulate scribbled note in response to a fax I sent them inquiring about the case in which they indicated that “We have requested information from other government offices. Unfortunately we cannot respond to requests for the status of your application before this info is received.” We appreciated the note very much, but have not received anything since then. I have written follow up letters all the way up to the Prime Minister's office but the case is still unresolved today, March 2nd, 2010.

Frankly, in reviewing this file from time to time I must admit I am revolted by the treatment this physician has received. In six years Canada has been unable to make a simple decision as to whether or not it wants a top surgeon like him to come there. Of course I mentioned to the doctor that we could bring an action in Federal Court to compel the Canadian Consulate to decide this case, but he did not feel that approach was appropriate. He continues to hope that Canada will finally make the decision and it will favour him. I am not so sure any more.

To illustrate just how perverse this case is, take by way the analogy of the Desert Storm war in the Middle East in 1991. President H. Bush mounted an international campaign in which he gained the cooperation of over a dozen nations, organized hundreds of thousands of troops and raised millions of dollars to conduct and win the war - all in just in 48 days! Yet this Canadian government cannot make up its mind about a single immigration case in over six years! This is how Canada's immigration system is run, and apparently it does not trouble the leadership, not even the Prime Minister!

The Case of John Demianiuk – A Test of Our Commitment to Basic Values

The Case of John Demianiuk – A Test of Our Commitment to Basic Values

 Any American accused of being an accessory to murder, that is to say accused of being an accessory to one of the most heinous crimes known to mankind, should be tried in U.S. courts under U.S. criminal law, or if the crime occurred in another jurisdiction, be extradited according to internationalcriminal procedure to that state to be tried there. Until tried and convicted, according to our precepts of law, such a person must be presumed innocent. From the very outset of the case against John Demianiuk, however, these fundamental precepts have not been followed.

 In fact, the Demianiuk case has involved criminal allegations advanced against him through civil law procedures - a criminal case prosecuted as an immigration matter.  There was a reason for this.

 Prosecuting Demianiuk in this way enabled those who seek his demise to deport him from the United Statesby meeting a lower test applied in immigration cases of showing that on a balance of probabilities he misrepresented his background when he immigrated to the United States. Otherwise, they would have had to show his guilt in committing a crime beyond reasonable doubt. However, now that the deed is done they alleged that he was found guilty of being a “Nazi war criminal” when in fact all that has been found is that he misrepresented his past when he entered theUnited States as an immigrant.  

 Anyone who knows the history of Operation Keelhaulfollowing World War II when refugees from displaced persons camps were forcibly repatriated to the former Soviet Union where some were killed, others exiled and still others committed suicide, will understand why Demianiuk’s misrepresentations were not necessarily so black and white and directly connected to Nazi atrocities as some would have us believe.  

 In short, the employment of this immigration procedure alone should have set off alarm bells about what this case may mean for the principle of the rule of law and a fair and balanced judicial system in theUnited States. But to really grasp the significance of what happened in the Demianiuk case we need to touch on some other basics. 

 John Demianiuk was never a Nazi. Nazis were Germans and they believed in the purity of the Aryan race. They had no time for mere Slavs like Demianiuk or other races that were either to be liquidated or driven into submission and used as servants for the Third Reich. As a prisoner of war captured by the Germans from the Red Army and allegedly put to work in the death camps, it can hardly be said that John Demianiuk  "volunteered" to be such a guard.

 The more troubling aspect of this case is, however, that for over a decade those who sought to bring John Demianiuk to "justice" maintained that he was in fact Ivan Grozny, also known as Ivan the Terrible - a grizzly figure who was indeed involved in the persecution of inmates in the Treblinka Naziconcentration camp. These accusations led to Demianiuk's deportation to Israel where witness after witness identified Demianiuk as Ivan the Terrible admitting no doubt that it was him. Following his conviction in the Israeli court, however, and during the process of Demianiuk's appeal, the defense team located witnesses who knew the real Ivan the Terrible and who signed sworn statements attesting to the fact that John Demianiuk was not Ivan the Terrible. Included among these statements, according to those who worked on the defense team, was a statement by the real Ivan the Terrible's girlfriend who definitively swore Demianiuk was innocent of these charges. 

 The power of this evidence, as well as the reopening of the Demianiuk case in the United States by the U.S. Sixth Circuit Court of Appeals while the Israeli appeal was pending, forced the Israeli appellate court to conclude that a mistrial had taken place, that Demianiuk was innocent of the charges and allow him to return to the United States. Demianiuk’s U.S. citizenship was restored after the U.S. Federal court found the Office of Special Investigations had been guilty ofprosecutorial misconduct for not revealing exculpatory evidence to the defense team that would have initially blocked the deportation of Demianiuk toIsrael. 

 After more than a decade of maintaining that Demianiuk was at one camp and was Ivan the Terrible, the prosecutorial team now maintains that Demianiuk was not there, but in another Nazi death camp where he was an accomplice to the murder of not just a few, but of no less than 29,000 victims! Where was the evidence of the 29,000 victims when he was being tried in Israel on the first round? As if it was possible for him to hide from his role in helping to murder 29,000 camp inmates since the end of World War II, that is to say for almost 65 years, including hiding for the last 30 years when he was the target of a day-by-day campaign to convict him of any kind of Nazi atrocity. 

 Ironically a few years ago Germany passed a law setting a time limitation on the prosecution of Germanwar criminals. Thus Germans, who were primarily the ones responsible for the death camps, cannot be prosecuted, but individuals from other countries like Demianiuk, can!

 What troubles me the most about this case is the silence of individuals and organizations ostensibly dedicated to human rights and their failure to speak up in support of Demianiuk. For example, I was a member of the American Civil Liberties Union, an organization dedicated to the protection of the civil liberties of Americans, including protecting the due process rights of individuals. I asked them specifically to speak up in the Demianiuk case and was met with silence.

I understand very well that defending someone accused of being a Nazi is a difficult challenge in our society, but isn’t it in precisely such circumstances that your true dedication to your beliefs is revealed?

 John Demianiuk may not have been a saint. However we are not measuring him against the standard of perfection. Let us remember that there are very few of us who have nothing to hide about their conduct in World War II. Let us remember the Allied blanket fire bombings of Dresden and Hamburg that many consider war crimes. Let us remember the roles played by Italy and Japan as allies of Nazi Germany. Let us not forget that the Soviet Union signed the Molotov Ribbentrop pact to enable Hitler to invadePoland and carve it up with Stalin. Let us remember the collaboration of Vichy France. Let us consider the role of some 150,000 Jewish soldiers in the German army, including at least a dozen high ranking officers of Jewish descent as well as the role played by Jewish Kapos, police and the Judenrat during the war. Let us remember that it was German officers and German soldiers that governed the death camps of Nazi Germany – not Ukrainians like Demianiuk. While the world ignores such  instances of Nazi collaboration it watches in silence as prosecutors seek to pin the tail on the donkey in Demianiuk’s case.

 Why?

 The reason is because this is not really about Demianiuk as a camp guard at all. That is clear from the fact that he is accused of being an accessory to 29,000 deaths, but not of murdering anyone. Isn’t that odd? That is because there is no evidence of his killing anyone. This is an accusation of guilt by association. It is founded on the belief that anyone who was a guard at any Nazi camp was by that very fact guilty of a war crime. No allowance is made for the possibility that such guards were not there of their own volition but forced to be there by threats to their families or other circumstances. Mere presence was enough. In this sense the Demianiuk case is little more than a Western show trial to reinvigorate the memory of the Holocaust and the collateral damage to people like Demianiuk and others is negligible or even deserving as far as those who are running this campaign are concerned. It is a show trial along the lines of what we saw in the former Soviet Union and Nazi Germany previously.  Those who seek to condemn the atrocities of those regimes and who hold the rule of law dear to their hearts owe it to Demianiukto rally to his defense.

 I have very little in common with Patrick Buchanan otherwise, but he is the only prominent American commentator who has spoken up about this witch hunt and I respect him for that.  But where are all the others? It appears they are not concerned that the Demianiuk case demonstrates that American courts can be politicized and made to bow to the pressures of expediency. It appears they are prepared to accept that America cannot always be relied on to be balanced, fair and to protect the rights of its citizens and the rule of law. 

 

 

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