Demjanjuk’s Last Trial, And Its Implications
Tue, 06/05/2012
Special To The Jewish Week
Martin Mendelsohn
Martin Mendelsohn

As a representative of the Sobibor survivors at the last trial of John Demjanjuk, convicted of Nazi war crimes before his death at 91 last March, I offer a perspective on the trial, which was fair and without bias.

The notion of war crimes and the prosecution for the violation of the international norms of legal behavior is something that permeated 20th-century diplomatic and legal thinking.  It was a logical extension that “war crimes” and crimes against humanity would be prosecuted after the First World War. The first war crimes trials in Germany were held in the 1920s by German courts. Virtually all of the defendants were acquitted and the effort was soon abandoned, but it gave us the seeds that produced the process and the International War Crimes Tribunal at Nuremberg in 1945.

Demjanjuk’s extradition a little more than three years ago, in conjunction with the heroic contributions of the OSI (U.S. Office of Special Investigations), was one the most famous and successful efforts of the German Central Office for the Prosecution of Nazi War Crimes in recent times. Now that Demjanjuk is dead we can look at him a bit more dispassionately and examine what he was, and was not.

Demjanjuk arrived in Munich in May of 2009 after a long and contentious legal battle in the U.S. and Germany — not between the two governments, but there was fierce private and public opposition to the extradition here and in Germany. Germany’s Constitutional Court decided the case could go forward and the Bavarian staatsanwalt (state’s attorney) agreed. The prosecution team framed the case to match the evidence at hand and, because of this brilliant stroke, the conviction was almost pre-ordained. But as we all know, no trial in a democracy is predictable.

The formal charge was that Demjanjuk had served as a guard — a “Wachmann” — at the Sobibor Extermination Camp. Duty rosters proved that he had served in Sobibor from March to September of 1943 and that he had been trained by the SS at the Trawnicki camp in Poland for such service.

But because of the lack of eyewitness testimony or documents showing actual murder, the formal charge was 28,000 counts of being an accessory to murder. The evidence was entirely based on documents. There was some testimony from survivors of Sobibor describing the operation of the death camp but there was no eyewitness testimony about what Demjanjuk did.

The defense counsel cleverly pushed the idea that Demjanjuk was an innocent invalid. Of course the medical testimony disputed the claim, but as the defendant was 89 the judge decided to coddle him to avoid any charge of mistreatment.

The trial itself was in a large courtroom in Munich and lasted almost two years. Hearings were limited to no more than four days a week and no more than four hours a day. And there were frequent gaps in the proceedings.

In the more than 30 years that Demjanjuk had been charged with war crimes, and in the three countries that trial courts have found him guilty — America, Israel and Germany — he never offered a defense. The documents damn him but his lawyers never even tried to prove the documents are forgeries. They are not; their authenticity has been affirmed in every trial, including the trial in Munich.

At the end of the trial, the German court pronounced he was guilty of all charges. He remained in the maximum security prison where he had been since arriving in Germany. After pronouncing him guilty as charged, the court then read an opinion of more than 200 pages that brilliantly summed up the charges, the evidence and the reasons for finding him guilty. The judge makes clear that an individual trained as a lowly Wachmann, or prison guard, was complicit in the crimes committed in the death camp. The fact that Demjanjuk wore a uniform and was armed with a rifle meant that he was as guilty as one who threw the switch to turn the gas on.    

This is the first case in which an individual has been found guilty of engaging in a joint criminal enterprise by acting as a Wachmann. The judge examined the duty roster documents and explicitly affirmed and confirmed the genuineness of the documents offered in evidence.

All justice is imperfect and falls short when we are dealing with an accused mass murderer, even one who has been convicted of being an accessory to murder 28,000 times. Nothing brings back the victims to life and no punishment is adequate. It is important that we teach these lessons and use these trials as educational tools. But because of how this trial was conducted — in Germany the judge, not the prosecuting and defending attorneys, determines the order of the witnesses, and there is little of the narrative logic we are used to — the chief judge seemed not to understand the greater implications of the trial.

The future of war crimes prosecutions in Germany is unclear. To the best of my knowledge the number of World War II cases under active consideration now is believed to be very small, and once decisions are made on those cases there may be nothing left to do given that more than 60 years have passed since the war ended.

Martin Mendelsohn is counsel to the Simon Wiesenthal Center and the first director of litigation for the U.S. Office of Special Investigations. He has assisted German prosecutors in Nazi War Crime trials for more than 20 years and represented the Sobibor survivors in the Demjanjuk trial.
 

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The German Munich District Court in March 2012 declared Demjanjuk "presumed Innocent" because he died because he died before the German Appelate Court court try the case.

According to the German Munich District Court his previous interim conviction is invalidated and Demjanjuk has no criminal record.

This was reported in Haaretz on March 23, 3012.

It is Ironic that after 30 years of legal wrangling Demjanjuk died innocent, without a criminal record, while many German Nazis went unpunished because of Germany's amnesties for Germans.

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