Demjanjuk presents German law with an almost impossible problem
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Demjanjuk presents German law with an almost impossible problem

The Demjanjuk trial, which resumed Monday, has offered up some awkward moral questions for the German justice system. But compared with other Nazi trials, Demjanjuk represents a completely new legal challenge.

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The trial of John Demjanjuk, a Ukrainian former prisoner-of-war turned concentration camp guard, has once again lifted the lid on questions about how the German justice system has dealt with the murderers of the Holocaust.

Not least among these questions is: ‘why now?’ Even by the glacial time-scale dictated by the law, the Demjanjuk trial has been a long time coming. The file of evidence against him has not changed since his identity was established in 1993, when an Israeli court cleared him of being a notorious Treblinka guard called Ivan the Terrible. A single identity card is the main piece of evidence: it shows that Demjanjuk was indeed a guard at Sobibor, probably between March and September 1943, and therefore must have helped murder at least 27,900 people thought to have died there in that period.

But the rest of the evidence against Demjanjuk is either circumstantial or mitigating. Most of the 35 plaintiffs are simply relatives of those killed at Sobibor, and the four actual survivors of the camp are too old to have a reliable memory of him or his immediate actions. The defense lawyer Ulrich Busch has repeatedly argued that Demjanjuk is also a victim of the Nazi regime: as a Ukrainian prisoner of war, Demjanjuk became a Trawniki – one of the many local non-Germans trained as guards in the easternmost concentration camps – to avoid starvation.

Why now?

Busch also asked the question ‘why now?’ in court in the first days of the trial in early December. Demjanjuk has only been legally pursued for these crimes since 2001. Busch pointed to the trials of Demjanjuk’s superiors that had resulted in acquittals – particularly that of Karl Streibel, a Trawniki recruiter, tried in Germany in 1976 and scandalously acquitted after his attorneys successfully argued that he did not know what the guards he trained would be used for. “How can those that give the orders be innocent, when those that receive them are guilty?” Busch asked the court.

Angelika Benz, a PhD history student writing a thesis on the concentration camps in eastern Poland, visited the first days of the Demjanjuk trial and described the central difficulty in blunt terms. “Even though we know what happened at Sobibor, the problem is that this crime – the Holocaust – simply can’t be dealt with by our judicial system,” Benz told Deutsche Welle, “This becomes clear when we’re dealing with someone like Demjanjuk – someone about whom we know very little.” With so many facts missing about Demjanjuk’s actions and motivations, his judges are forced to redefine the law according to the general and abstract definition of the Holocaust itself.

The judges’ answer to Busch’s question of how Demjanjuk could be considered guilty when the man who may have trained him had been acquitted was simple – the past mistakes of the German judiciary need not be repeated. This signal that past judgements in Nazi trials are irrelevant, even flawed, is apparently necessary if any judgement can be passed on Demjanjuk at all.

The precedents are useless

The historian Joerg Friedrich became famous when he published two provocative books on the Nazi trials in the early 1980’s – “Freispruch fuer die Nazi-Justiz” (“Acquittal for the Nazi-Judiciary”) and “Die Kalte Amnestie” (“The Cold Amnesty”) – in which he argued that the German judiciary had failed to bring the Nazi perpetrators to justice. Now he believes that the judiciary has come round to his point of view, and is attempting to correct its mistake by going after the last remaining perpetrators with new vigor. The trial of 88- year-old Heinrich Boere, a Dutch member of the SS, is also currently under way in Aachen after decades of legal prevarication and a tireless campaign to bring him to justice.

Friedrich believes that the Demjanjuk trial illustrates two important developments in the German judiciary’s attitude to the Holocaust. Firstly, that it is rethinking, or being forced to rethink, its definition of a Holocaust perpetrator. Secondly, that it is prepared to lower the bar of required evidence in order to convict Holocaust perpetrators.

But Boere’s crime is much easier to define than Demjanjuk’s – he is accused of, and has admitted to, three specific acts of murder. By current German law, this is the crime that Demjanjuk will have to be found guilty of if he is to be convicted – of all the crimes that Demjanjuk may or may not have committed, murder is the only one that has not exceeded its time-bar limit. Germany lifted that limit on murder in the 1960’s.

“This is a problem that judges in the 50’s, 60’s, 70’s and 80’s ignored,” Friedrich told Deutsche Welle, “The majority of Holocaust-perpetrators were seen as abetters, those that helped the murderers. The actual murderers were always defined as Hitler, Himmler, Eichmann – those that made the decision to instigate the Holocaust – or those that showed a personal motivation in the act. Murder is not simply killing someone – you must prove intent and motivation to ensure a conviction. The abetters were those that helped Hitler, but had no motives of their own – they simply carried out their tasks.”

This narrow definition of the murderers of the Holocaust appears in almost all Nazi trial judgements from previous trials. Simply working in a concentration camp never convicted anyone. But this is all that can be established beyond doubt about Demjanjuk. In order to convict him, the judges will essentially have to redefine murder for the extreme and abstract circumstances of the Holocaust.

A long chain

“In previous Nazi trials, those that were convicted were the so-called ‘concentration camp monsters’ – people who had been seen tormenting, abusing, or beating Jews before their execution,” Friedrich explains, “Such actions were considered ‘personal contributions’, and people were convicted not of being abetters to the crime but of being co-perpetrators.”

This goes some way to explaining why so few people were convicted of Holocaust crimes in Germany. According to an article in news magazine Der Spiegel on the legacy of German guilt, of over 100,000 investigations that were carried out in postwar Germany into Nazi crimes, only around 6,500 people were convicted. Thirteen death sentences were passed, 167 life sentences, and the rest received shorter prison sentences or fines. Only a fifth of those convictions were for murder.

“For the German judiciary, the Holocaust only ever existed within the camp gates,” Friedrich points out, “But in fact the Holocaust was a long chain. The whole of society played dumb and those that did the bloody work appeared in court.”