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.