10 July 2009

A copy of John Demjanjuk's UN identity card from when he was a displaced person: The trial of the suspected camp guard will be a legal first in Germany.

BY CORDULA MEYER

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 in 1943 as a guard in the Sobibor death camp, 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 that 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 keep the killing machinery running smoothly.

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 — who the Nazis trained at the Trawniki training 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 it presumably 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’s 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.

Sadists or Pitiful Old Men?

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 to justice the men who had been higher up the chain of command, 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 pieces of 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 to the victims and the survivors, but also to themselves, to prosecute Demjanjuk,” he says.

Convicted War Criminal John Demjanjuk