Demjanjuk’s Long Road to Justice Nears a Murky End
By A.J. Goldmann November 10, 2010
The day I arrive in Munich is dismal and gray. One of the jewels in Germany’s crown, the Bavarian capital does not impress on a day like this. Rather, the Glockenspiel at Marienplatz, and the elegant shopping boulevard Maximilianstrasse seem dull and lifeless. Inside, the beer halls are bustling. No wonder — they are the only islands of cheer on this October day.
For the past 27 years, justice has pursued John Demjanjuk. Now, in Munich, German prosecutors are having a last go at the 90-year-old retired American autoworker and alleged guard at Nazi death camps during World War II.
This is a prosecution that features something unprecedented. Over three decades, Demjanjuk has undergone two long denationalization and deportation proceedings in the United States and a lengthy trial in Israel. But the man once pegged as the notorious Ivan the Terrible of Treblinka — a sadistic perpetrator of mass atrocities — has never been tied beyond reasonable doubt to any specific criminal act. And so, in what is almost surely one of the last Nazi war crimes trials that will take place on German soil, prosecutors are seeking to persuade the current court of a simpler allegation: that Demjanjuk was a prison guard at Sobibor death camp — one of many in concentration camps throughout Europe — and that this constituted a war crime independent of any specific criminal act Demjanjuk may or may not have committed — in essence, that Demjanjuk is guilty of being in the wrongest of places at the wrongest of times.
“It is really something new about the Munich trial,” wrote Michael Koch, one of Demjanjuk’s prosecutors, in an e-mail to the Forward. “The prosecution in former days always looked for specific actions in order to bring Nazi criminals to justice.”
The trial, which started last November and is expected to last until spring 2011, has been delayed time and again by Demjanjuk’s health issues, some possibly fabricated to gain the court’s sympathy. This trial offers nothing like the concision of a “Law & Order” episode.
Still, I had a genuine shock when I entered the Munich regional court the day of the 50th session. I was expecting John Grisham, and I got Samuel Beckett. Absurdities, oddities and complexities abound in this case, and one feels a palpable sense of disconnect between the laudable goal of bringing an alleged Nazi criminal to justice and the humdrum grind of a long trial that itself comes only after a much longer and very cloudy legal trail now sputtering and slouching to an uncertain endpoint.
Demjanjuk was born Ivan Mykolayovych Demianiuk in Ukraine in 1920. He served as a soldier in the Red Army during World War II, and in 1942 he became a German prisoner of war. On these things, all agree.
It is also uncontested that in 1952, Demjanjuk arrived in America with his wife and child, settling first in Indiana and then in Ohio. Twenty-five years later, the Justice Department initiated proceedings to strip him of his citizenship, citing his alleged concealment of his involvement in war crimes at the Nazi death camps at Majdanek, Sobibor and Flossenbürg. Relying on eyewitnesses and on identity documents supplied by the Soviet Union, the federal prosecutors contended that Demjanjuk was, in fact, “Ivan the Terrible,” a kapo, or notorious prisoner-turned-guard, at the Treblinka and Sobibor camps, a man known to have committed numerous murders and acts of savage violence against camp prisoners during 1942 and 1943.
Between 1977 and 1988, Demanjuk was stripped of his U.S. citizenship and extradited to Israel, where he was tried and found guilty of war crimes as Ivan, the Treblinka kapo.
During his trial, several former camp prisoners identified Demjanjuk as “Ivan” of Treblinka. Demjanjuk claimed he was never anything other than a prisoner of war after his capture. But he also admitted that the scar under his armpit that had denoted his blood type was an SS marking that he removed after the war.
Then, during Demjanjuk’s appeals process, the Soviet Union fell, and suddenly Soviet archives brought forth new evidence: the written statements of 37 former guards at Treblinka who identified Ivan the Terrible as one Ivan Marchenko, not Ivan Demjanjuk.
American officials, it turned out, had originally been aware of the testimony of two of these German guards but had never informed the defense — a fact that later led a U.S. appeals court to rule that Demjanjuk had been a victim of prosecutorial misconduct, even as it also found the evidence was convincing that Demjanjuk had been a lesser SS figure or camp guard.
After the emergence of these archival statements, the Israeli Supreme Court reversed Demjanjuk’s conviction, citing the “gnawing” new evidence of mistaken identity. But the Supreme Court judges also found other facts “proved the appellant’s participation in the extermination process” as a guard.
“The matter is closed — but not complete, the complete truth is not the prerogative of the human judge,” the court wrote.
Demjanjuk was returned to the United States, and his citizenship was restored until 1999, when the Justice Department initiated a new effort to denationalize and deport him. This time, federal prosecutors alleged simply that he had entered the country while concealing his service as a guard at Sobibor and Majdanek. Demjanjuk lost his last appeal in 2008, and in 2009 Germany sought his extradition from the U.S. to stand trial in Munich.
In the Munich trial, Demjanjuk has been indicted for being an accessory to 28,060 counts of murder. The prosecution is putting together a case that describes the Sobibor killings as a single project that collectively implicated everyone employed there — even low-ranking guards and auxiliaries, the cogs in the Nazi killing machine — in the exclusive purpose of mass extermination. To do this, however, requires proving that Sobibor, during the time Demjanjuk is said to have worked there, was strictly and solely a factory for death. Once that is shown, it needs to be established beyond reasonable doubt that Demjanjuk in fact served there. Demjanjuk continues to deny having ever been a guard anywhere.
The sessions I saw were sparsely attended. Demjanjuk was wheeled into court in a hospital bed. He wore sunglasses and a baseball cap and was partially covered by a green blanket. Throughout the session, he barely moved or made a sound. During rare moments of silence in the courtroom, his low moans could be heard. It was difficult to determine whether the defendant could even follow the proceedings.
Among the co-plaintiffs are four survivors of Sobibor and 23 Dutch first-degree relatives of victims from the camp. Two of the Dutch co-plaintiffs were present during my dates in court. For them, this trial is about both fulfilling an ethical obligation and achieving personal catharsis.
Psychologist Robert Wurms, one-time chairman of the Central Jewish Board of the Netherlands, said that there is an obligation to mete out justice regardless of the accused’s age: “He committed crimes in this system and took lives on an industrial scale. We can’t be indifferent to that.”
Robert Fransman, a former salesman, who, like Wurms, lost multiple family members during the war, added a personal reflection. “The Holocaust is about big numbers, but the names of Rachel Fransman and Isaac Fransman are never named. When I heard the judge call the names of my sister, whom I never knew, or my parents, whom I never knew, it was like Kaddish,” said Fransman, who is blogging the trial for a Dutch radio station’s website.
But at the start of the session on October 25, Ulrich Busch, Demjanjuk’s defense lawyer, frantically waved in the air an article discussing a just released report on the German Foreign Ministry’s role in the Holocaust. “Why are you prosecuting a 90-year-old man who’s near to death when you still have Nazis right here in Germany?” he shouted at the presiding judge, Ralph Alt, with whom he sparred often and loudly during the morning session.
From the opening of the trial last November, Busch has claimed that Germany has handpicked Demjanjuk as a scapegoat for its own crimes. “Germany still gives to all Germans who were in lower ranks and took part in the extermination of Jews de facto amnesty. They only pick out Mr. Demjanjuk from the States, and they persecute only him. First, they have to clear the situation with their own people before they start bringing people from other nations to court in Germany,” he told me in the hallway during a break from the session. His vehemence impressed me, but it also seemed a continuation of his earlier performance in court.
Angelika Benz, a 29-year-old doctoral candidate at the Technical University of Berlin who is writing her dissertation on Trawniki, the camp at which Demjanjuk allegedly trained, finds some truth to Busch’s claim. “If you think about the German perpetrators, they were well integrated in the after-war society. So if you now try to get them, you will find well-honored people. If you go in a little village near Munich, for example, maybe it would be [a retired] mayor. And then if you try to get that person in front of a trial, you would have a problem with the whole society. He would be a neighbor, a friend, a father,” she said.
For Wurms, however, the trial is a sign of the long way Germany has come in the past 65 years. “You have to compare this trial to the trials from after the war. I think this generation of judges and lawyers is totally different from the generation after the war. And you can feel and hear from them how ashamed they are of how Germany dealt with those criminals and didn’t convict them, or gave slight punishments. This is also a revolution of the new generation against the old generation. It must have a base in society and general feeling,” he explained.
On my second day in court, Demjanjuk failed to show up on time, claiming physical distress. When court doctor Albrecht Stein reported that he couldn’t find anything wrong with him, Judge Alt ordered Demjanjuk to present himself for the afternoon session.
While waiting for Demjanjuk to arrive, I ran over to the Altstadt to meet with Aaron Buck, the press officer for Munich’s Jewish community. As I entered, Buck handed me a photo from a German tabloid, which showed Demjanjuk in his hospital bed. “These pictures don’t help us to talk about the real important things,” he said, adding that such images resonate with those who are fed up with discussions of Germany’s wartime crimes. The situation would be even worse, he felt, if Demjanjuk himself were German. “If he was presenting his testimony in German, and people saw that this German grandfather was on trial, I think that many Germans would sympathize more with him,” he explained.
Buck suggested that the trial might be more significant for Germany as a whole than for the Jewish community. “It’s a good end of the story. It’s not that you can run away and live in Argentina or whatever. So I think it’s important for Germany, but for the Jews, he’s just one of thousands who finally were found,” Buck said, adding that Munich’s 9,000 Jews are more concerned with contemporary issues than with digging into the past.
Demjanjuk eventually arrived from Stadelheim Prison at 1 p.m. The day’s witness was a lawyer from The Hague, Regina Grüter, who testified about the Westerbork database, a compendium of information on the transports of Dutch Jews to Sobibor. Busch seemed intent on wasting as much time as possible on irrelevant questions. By now, everyone in court seemed to be fed up with his stalling techniques, and Alt forcibly shut him up at several points.
Since it is crucial for the prosecution to show that all the Jews delivered to Sobibor in the summer of 1943 were marked for death, Busch tried any tack he could to dispute the relevance of these transport lists. In a moment that was almost contemptible, he asked whether, in addition to the lists of Jews put on the trains bound for Sobibor, there were lists confirming that these Jews ever actually arrived at the camp. The question met with groans of disbelief. Periodically, Dr. Stein — who with his handlebar mustache, ratty hair and blazer-with-jeans combo looked like he just wandered out of a Fassbinder film — administered painkillers to his patient.
“The best thing that could happen to him, in my opinion, is that he could stay in prison, because he’s very well taken care of,” Fransman said. “In the absolutely unthinkable case that he’s acquitted, it would be a disaster for him, because no country wants him. There’s no place for him on earth.”
Surprisingly, I heard similar sentiments from Demjanjuk’s defense lawyer. “He would be in a terrible situation if he was acquitted,” Busch confided to me.
For Fransman, the main point is not the sentence; it’s the verdict. “I want the court to say ‘guilty’ — as far as I’m concerned, with no penalty at all,” he said, noting that “the last 27 years of his life, he has been in and out of court, and his life is so miserable.”
In the German system, three years is the minimum sentence for accessory to murder. “So he will get three years; that’s my opinion,” Fransman said. “And for him, he should hope to die in those three years.”
Contact A.J. Goldmann at feedback@forward.com
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