Commentary Magazine


Topic: Israeli Supreme Court

Justice Failed in the Demjanjuk Case

Yesterday, John Demjanjuk died in a German nursing home. Though twice convicted of participation in one of history’s great atrocities, with the assistance of clever lawyers, liberal judges and owing to his age and infirmity, Demjanjuk didn’t pass away in jail. Upon his death, his family once again declared his innocence and, due to a technicality in German law that says sentences are not final until the last appeal is ruled on, could even claim that his death voided his conviction. The New York Times obituary, though providing voluminous detail about his case, insisted on describing his case as merely a one of “questions” and “mysteries.”

But any objective examination of his story reveals little that could be fairly termed a “mystery.” Demjanjuk was a soldier in the Red Army who was captured by the Germans. Like many other Ukrainians he fought for Hitler’s army. But he was no ordinary turncoat solider hoping to evade the grim fate that befell most Soviet prisoners of the Nazis. He volunteered to be a death camp guard. Even if one accepts the doubts that were raised as to whether he was the infamous “Ivan the Terrible” of the Treblinka extermination facility, there is no doubt that he was a terrible Ivan who served at the equally horrific Sobibor, Majdanek and Flossenbürg camps. But though enough proof of his complicity in these crimes was brought forward to secure two convictions many years later, like many another Holocaust criminal, Demjanjuk didn’t die inside prison walls. While his Holocaust-denying fan club (among whose members we must count pundit and former presidential candidate Pat Buchanan) may claim the last laugh we must credit the hard work of activists and prosecutors who never gave up the fight to bring him to book for his crimes. In doing so, they did honor to the victims as well as to the cause of justice. We can’t help but note though that their efforts must be said to have fallen short since Demjanjuk never got the date with the hangman that he richly deserved.

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Yesterday, John Demjanjuk died in a German nursing home. Though twice convicted of participation in one of history’s great atrocities, with the assistance of clever lawyers, liberal judges and owing to his age and infirmity, Demjanjuk didn’t pass away in jail. Upon his death, his family once again declared his innocence and, due to a technicality in German law that says sentences are not final until the last appeal is ruled on, could even claim that his death voided his conviction. The New York Times obituary, though providing voluminous detail about his case, insisted on describing his case as merely a one of “questions” and “mysteries.”

But any objective examination of his story reveals little that could be fairly termed a “mystery.” Demjanjuk was a soldier in the Red Army who was captured by the Germans. Like many other Ukrainians he fought for Hitler’s army. But he was no ordinary turncoat solider hoping to evade the grim fate that befell most Soviet prisoners of the Nazis. He volunteered to be a death camp guard. Even if one accepts the doubts that were raised as to whether he was the infamous “Ivan the Terrible” of the Treblinka extermination facility, there is no doubt that he was a terrible Ivan who served at the equally horrific Sobibor, Majdanek and Flossenbürg camps. But though enough proof of his complicity in these crimes was brought forward to secure two convictions many years later, like many another Holocaust criminal, Demjanjuk didn’t die inside prison walls. While his Holocaust-denying fan club (among whose members we must count pundit and former presidential candidate Pat Buchanan) may claim the last laugh we must credit the hard work of activists and prosecutors who never gave up the fight to bring him to book for his crimes. In doing so, they did honor to the victims as well as to the cause of justice. We can’t help but note though that their efforts must be said to have fallen short since Demjanjuk never got the date with the hangman that he richly deserved.

The Cold War allowed many Eastern Europeans who took part in Nazi-era crimes to pretend to be victims. Demjanjuk was one such person and like many others who took part in these crimes, Demjanjuk evaded the long arm of the law after World War II ended and entered the United States where he took the name John and eventually became a citizen and raised a family. But unfortunately for him, evidence of his ties to the SS was uncovered, including an identity card with his picture. Survivors also identified him. His lies were eventually exposed and after many years of litigation the Justice Department was able to revoke his citizenship and deport him to Israel where he was put on trial.

After exhaustive arguments and extensive testimony from survivors who identified him as the man who brutally assaulted victims and killed many with his bare hands at Treblinka, Demjanjuk was convicted and sentenced to death. But five years later, the Israeli Supreme Court overturned the verdict and set him free.

The court’s justification for this action was the claim that other guards claimed that another Ivan, named Marchenko was the “terrible” guard of Treblinka. But the court’s ruling was not so much a conclusive ruling about his innocence as a meditation on the role of Israel justice. The majority seemed to feel that so long as even a shadow of a doubt existed as to his guilt it would be better that Israel should not take his life or deprive him of his liberty. This was meant and was actually perceived in many quarters as tribute to the quality of Jewish mercy as well as Israeli justice but it may well have been very bad law. As even the Times noted, Demjanjuk had listed his mother’s maiden name as Marchenko on his U.S. entry papers. The preponderance of evidence still must be said to show that Demjanjuk really was Ivan the Terrible of Treblinka.

Instead of the execution that he merited, he was sent back to America in 1993. But there again, intrepid prosecutors set to work to try and convict him again, this time, for being a guard at the camps that his lawyers said he was at rather than Treblinka. Again long delays put off his second deportation and trial (this time in Germany) and his conviction on those awful charges did not come until 2011.

We may take some solace in that the extended legal process for Demjanjuk helped educate the world about the Holocaust. We may also take pride in the efforts of those who labored for so many years to try and bring him to account for his part in these crimes. But there is much about this case that ought to be regarded with disgust.

Among the most shameful aspects of this story is the way some, like Buchanan, used Cold War enmity to obfuscate the guilt of Demjanjuk and other Eastern Europeans who were Hitler’s collaborators. Also shameful was the criticism aimed at the many Holocaust survivors who stepped forward to identify Demjanjuk as one of their torturers. The aspersions cast and doubts that were raised about the veracity of their testimony were deeply unfortunate. Most of all, the unwillingness of the Israeli Supreme Court to take responsibility for the case and to rule with fairness as well as mercy did little honor to that institution.

The plain fact of the matter is that John Demjanjuk never got the sentence his crimes warranted. In that he was not alone since many such criminals evaded prosecution, let alone prison time or execution. And for that we may all hang our heads in shame.

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