IN MEMORY OF JOHN DEMJANJUK

by Andy J. Semotiuk

John Demjanjuk during his trial in Munich, Germany during which he was convicted of being an accessory to the Nazi murders of over 27,900 Jews while, according to the court ruling, serving as a guard in the World War II death camp in Sobibor, Poland, and after being a former Soviet Red Army soldier he was taken prisoner of war by the Germans in 1942.

About 25 years ago I was asked to attend a fund raising dinner for a man named John Demjanjuk. He was being deported from the United States to face trial in Israel accused of being Ivan the Terrible. I was reluctant to attend since the last thing I wanted was to support the defence of someone who might have been a Nazi war criminal.

However, as an immigration lawyer, I was intrigued by what appeared to me to be the use of criminal law masquerading as immigration law in his case. From that night on, I followed the proceedings in the many trials of John Demjanjuk. While I was not immersed in the case, over the years I became increasingly alarmed by the legal deficiencies that were evident in the prosecution of his case in the United States, then in Israel and finally in Munich. Over time I began writing articles pointing out these legal shortcomings. While his recent death brought an end to his legal journey, I believe the legal legacy of his case will trouble us for many years to come.

Demjanjuk’s legal odyssey began while he was living in Cleveland in the 1970s. In 1975 Michael Hanusiak, editor of the New York-based Ukrainian Daily News, compiled a list of Ukrainians suspected of collaborating with Germans and presented it to what was then the U .S. Immigration and Naturalization Service. John Demjanjuk was on that list. The Ukrainian Daily News was nothing more than a pro-Soviet mouthpiece. The newspaper served as a convenient vehicle for the Soviet KGB to set off Jews against Ukrainians, particularly in the United States since at that time there was a fair degree of cooperation between the two groups who worked with Russian dissidents like Andrei Sakharov to secure the release of various Soviet dissidents and the emigration of Soviet Jewry to Israel in an era of detente.

Then in 1977 Demjanjuk was accused of being not just a Nazi collaborator, but of being Ivan the Terrible, a gas chamber operator in the Treblinka death camp in Poland. From 1977 to 1993 Demjanjuk faced a long series of court hearings through the American and then Israeli court systems all the way to the Supreme Court of Israel. In the course of those hearings he was found guilty and sentenced to death. In short, for 15 years while he sat in U.S. and Israeli jails, those who pursued and prosecuted Demjanjuk were positive that he was not in Sobibor as they claimed later in Munich, but rather in Treblinka.

In 1993, after the defence in the Israeli proceedings amassed irrefutable evidence of Demjanjuk’s innocence, the Israeli Supreme Court lifted the sentence, dismissed the charges (that incidentally included the charge that he was a guard in Sobibor), and allowed him to return to the United States. In the meantime a U.S. Federal Appeals Court had opened up his case after determining that U.S. prosecutors were guilty of prosecutorial misconduct in failing to earlier reveal to the defence a raft of files with exculpatory evidence they had. Demjanjuk’s U.S. citizenship was reinstated and he was allowed to go free once again.

As it turned out John Demjanjuk was definitely not Ivan the Terrible of Treblinka. But those who had pursued Demjanjuk for 15 years swearing for certain he was in Treblinka and not anywhere else, then declared – no, he was not in Treblinka, but rather he was in Sobibor. The process started all over again in 2002 and by 2009 Demjanjuk was once again on an airplane headed out of the country, this time to Germany.

This time, however, the charges seemed even stranger. Demjanjuk was charged not with war crimes or crimes against humanity, nor even of murder, but of being an accessory to murder. Not murder in Germany, but in Sobibor, that is to say in Poland. Not as a high-level official, but as a low ranking guard. Not as a German, but as a Ukrainian. Not of one, or a few victims - but of 27,900 victims.

Why did Germany decide to target Demjanjuk in this way? And why did it remain silent for 40 years while the Demjanjuk case wound its way through the U.S. and Israeli courts?

If Germany was so concerned about its Nazi past there was no shortage of Nazis to prosecute – no shortage of party members, Nazi government officials, army officers, camp commandants. Why, for example, didn’t Germany prosecute Reinhard Gehlen, the former Nazi chief of eastern front intelligence and the hundreds of other ex-Nazis he gathered in the West German Federal Intelligence Service (BND) that he headed after the war? The answer was evident. Germany did not have the stomach to fully prosecute its own transgressors. In fact, its pursuit and conviction of its own Nazi transgressors had not been very impressive.

Though German courts investigated over 100,000 cases, only some 6,500 accused were convicted and of these, most received rather light sentences. Furthermore, Germany passed legislation that effectively provided an amnesty from prosecution for German Nazis, including SS concentration camp commanders and their German subordinates. But the amnesty did not extend to Untermenschen (sub-humans) like Demjanjuk.

It appeared that the German leadership was tired of prosecuting their own people and was now looking for scapegoats like John Demjanjuk to slough off German guilt for what happened in the concentration camps of World War II.

The prosecution in Munich relied on three key pieces of evidence and a ‘novel’ legal proposition to obtain a conviction. It submitted evidence of a Trawniki ID card, a statement of a fellow Sobibor camp guard named Ignat Danilchenko who claimed that Demjanjuk was with him at the camp, and Nazi transfer lists that included Demjanjuk’s name as one of the soldiers assigned to the camp. As for the theory of guilt in the prosecution’s case, they argued that the mere presence of a guard in this death factory was tantamount to assisting with the murders that took place there.

Trawniki Card
Was the Trawniki card real or was it a Soviet fabrication? Much evidence was led over the years one way or the other. It must be remembered that the defence was not under the burden of proving the Trawniki card to be forged. All the defence had to do was raise a reasonable doubt about it. Three arguments stood out in my mind regarding the card.

Perhaps the most disturbing was the question of where the card originated and the chain of possession that related to the card. That the signatures of the German officials on the card were real did not lead to the conclusion that the card itself was real. As Count Nikolai Tolstoy pointed out to Yoram Sheftel, the Israeli attorney who defended Demjanjuk in Israel, there was an entire Soviet KGB division known as Division 14 that dealt solely with the forgery of documents. Sheftel indicated that the components of such cards, including pre-signed Nazi signatures, were seized by Russian troops at the end of the war and were therefore available to the Soviets to make up false papers. The dubious road from post-war Poland to Soviet Russia to the U.S., to Israel and then to Munich in the hands of the persons involved did not inspire great confidence in its authenticity. The Soviets had a motive to discredit Demjanjuk as a Ukrainian anti-communist in Cleveland during the détente era and the opportunity to do so.

Some world experts expressed reservations about the authenticity of the card. Basing himself on all the known signatures of Demjanjuk in the years 1947 to 1986, for example, Dr. Grant, who Sheftel claimed was the world’s foremost forensic expert and the man who revealed the forgeries of the “Mussolini diaries” and the “Hitler diaries”, testified in Israel that the Demjanjuk signature on the card differed from all the others in the way the Ds and Ms were formed and in the fact that in all other signatures the writing was continuous but on the card it was not. Further, Dr. Grant pointed out that there were two holes in the right side of the picture on the card whilst on the paper under the holes in the photograph there were no holes. Judging by the purple ink found inside the holes which was similar to ink used by the KGB and the nature of the spacing of the holes Dr. Grant concluded it was more logical to assume that the photograph was unstapled from some other Soviet document and attached to the card in the Soviet Union, than that it was originally attached in Trawniki in 1942. Israeli officials refused to allow Dr. Grant to detach the photo from the card to make a conclusive finding, but he nonetheless concluded his evidence by saying “The Trawniki document cannot be an authentic document belonging to the defendant Demjanjuk.” The same conclusion was reached by many researchers around the world who have cast doubt on the card, particularly when it was compared to similar cards from the time period.

Michael Shaked, the prosecutor in the Israeli case, indicated that on January 23rd, 1987 the original Trawniki card was provided for examination to the German police force’s main criminal-identification laboratory in Weisbaden, known for its initials as BKA. The laboratory analysts indicated that even after a cursory examination it was evident that the document was a forgery. They pointed out that the face in the photograph which the prosecution in Israel had identified as Demjanjuk’s had been pasted on to the uniform using photomontage techniques; the picture was not originally attached to the card, but had been transferred from another document; there was no match between the seal on the Trawniki picture and that on the document itself. Further German analysis was of the card was stopped by the Israelis since it was not helping their case. These were some to the main shortcomings related to the Trawniki card that raised serious doubts about its bona fides. Yet the Munich court held there was no reasonable doubt about it.

Danilchenko statement
Given that Demjanjuk was accused of being an accessory to the murder of 27,900 victims, it would seem that such a guard would have been well known and readily identifiable by survivors of Sobibor whose fate would have been in his hands. Yet according to Sheftel, of the dozen Jewish survivors of Sobibor throughout the world who were questioned from 1976 onward, by both the American investigators and the Israeli authorities, none identified Demjanjuk’s picture as that of a guard from Sobibor. This was significant since it contradicted the evidence of Ignat Danilchenko who claimed he served with Demjanjuk in Sobibor and identified Demjanjuk’s picture when Danilchenko was interrogated in 1979 by the Soviet KGB. Some time after his interrogation, Danilchenko said he was tortured by the KGB which tended to discredited his assertions. He passed away without ever being cross-examined by the defence on the identification or his claims.

Transfer Lists
There was evidence led by the prosecution that Demjanjuk’s name appeared on Nazi transfer lists assigning him to Sobibor. There was some confusion about this since Demjanjuk’s name also appeared on another transfer list dealing with Lublin apparently punished for unlawfully leaving a camp there. Was he at both camps?

The Court’s Conclusion that Demjanjuk Was at Sobibor
All the foregoing evidence, according to the court, established that Demjanjuk was indeed present in Sobibor. But this alone was not enough to convict Demjanjuk of the crime as alleged. The prosecution needed to prove complicity in murder.

A fundamental principle of Western jurisprudence is individual responsibility for one's actions. In criminal law, this requires that the charges against the accused, and the accused’s responsibility for the crime, must be proven beyond a reasonable doubt. Since Demjanjuk could not be accused of any specific criminal act, he had to be found guilty not of murder, but of being an accessory to murder. And since he was not a German and therefore effectively amnestied by German law, and never a Nazi, he was tried as a non-German because he allegedly worked for the Nazis. Since there was no direct evidence of guilt, the case had to be proven on circumstantial evidence.

To prove a circumstantial case the evidence presented had to lead to a reasonable conclusion that Demjanjuk was guilty - and no other reasonable conclusion. That is the standard of proof required in such circumstantial cases under criminal law. But others who were in Sobibor, German guards, such as Erich Lachmann, Heinz-Hans Schutt, Heinrich Unverhau, Robert Juhres, Ernst Zirke, or Erwin Lambert were charged but found not guilty according to the Holocaust Archive and Research Team who list these names on their web site. If they were there, did not try to escape due to risk of death, and were not part of the ‘killing machine’ then that could also have been true for Demjanjuk. If anything, the evidence in the Demjanjuk case supported a reasonable inference that he was innocent, even assuming he was in the camp, precisely because he was NOT German and therefore likely did not want to take part in the work of the camp.

To many Ukrainians the Demjanjuk case demonstrated that the world did not understand that Ukraine was a victim of both the Soviets and the Nazis during World War II, and of the Holodomor before the war. Their exasperation over its many twists and turns grew over time. For many Jews, Demjanjuk’s case represented their last opportunity to once again broadly publicize the evils of Nazi Germany and its role in the Holocaust. They made the most that they could of it.

In the end, however, this case was not really about the trial of Ivan Demjanjuk. It was about the trial of modern-day Germany, of Israel before that, and by extension, since the case started there, of the United States. In their desire to condemn the transgressions of Germany’s past, the prosecutors and judges in the Demjanjuk case, from its beginnings in the United States to Munich, failed to follow elementary rules of fairness, due process and the rule of law. They employed immigration instead of criminal rules to lower the standard of proof for the prosecution, they knowingly withheld key evidence from the defence and were found by a U.S. appeals court to have committed prosecutorial misconduct, they deported instead of extradited Demjanjuk to Germany, they invented new theories of guilt unknown to the law and detached from personal responsibility and they allowed the case to be politicized to become a show trial over and over again. The irony of the Demjanjuk case lies in the fact that despite all these efforts to convict him, according to German law, no conviction stands until all appeal rights have been exhausted. In other words, despite what the international media may say, according to German law, and Israeli and American law for that matter, Demjanjuk was never found guilty of any crime. His long nightmare is finally over. At long last he can now rest in peace.

Andriy J. Semotiuk is an attorney practicing in the area of international law focusing on immigration. He is a member of the bars of New York and California in the United States and Ontario and British Columbia in Canada. A former United Nations correspondent who was stationed in New York, Mr. Semotiuk now practices law and resides in Toronto.