Germany Vs The Holocaust: a Judicial Farce

In 2011, out of the blue, a Spanish court requested the extradition of alleged Nazi war criminal John Demjanjuk, then being tried in Germany, and I was tasked to write about the case. I did the best that I could, and I don’t think it was very good, or very bad: a few days later, I received an exceedingly polite email from one of Demjanjuk’s sons, pointing out small inaccuracies in the report.

Demjanjuk Jr. said the inaccuracies didn’t merit a correction, he just begged me to be more careful in the future when reporting on the very, very complex case involving his father. I responded apologizing for the inaccuracies, and assuring him that I would take his advice on all points (he was right on them all) and would strive to portrait the case against his father as fairly and exactly as possible.

Once again, Demjanjuk Jr. wrote: he said he was very glad that I had responded and that I would listen to his comments; he added that most journalists ignored him or fought him, even when (as in this case) he was right on the specifics discussed. He said he was heartened by the sight of a journalist in a major American publication who was humble enough to listen and respond, and that this fact gave him strength after years that had been very hard on his family, years in which his father had been repeatedly tried, convicted, deported and stripped of his U.S. citizenship.

I’ve never received a nicer email, in my long career as a correspondent. That’s why I remember it. John Demjanjuk, the most prominent of the last batch of alleged Hitler’s Executioners, died of old age soon thereafter, right after German courts found him guilty on all accounts, but before he had the time to appeal — or to be sent to Spain, to be tried all over again.

Over the next few years, I did some reading on the extremely twisted and complex Demjanjuk case. I won’t try to summarize it here: start with Wikipedia, and follow the links. Or watch the HBO documentary, just out! It’s a long, long, long rabbit hole.

I was reminded of this case the other day, when reading in the Times Literary Supplement a review (behind the paywall) of ”Reckonings,” a 2018 book by Mary Fulbrook, written by Deborah Lipstadt (yes, that Deborah in the movie with David Irving). It’s a fascinating review of what is surely a fascinating book; as Lipstadt explains, Reckonings is:

…an indictment of the notion that West Germany boldly and honestly faced its past. It may memorialize the victims, which is a relatively uncontroversial thing to do. But, for close to four decades after the war it treated the perpetrators with far greater sympathy than it did the survivors. Judges dismissed witnesses’ assertions as emotional and unreliable. Survivors who had been to Israel found their testimonies discounted because, the court assumed, they had colluded with other survivors. (The fact that the perpetrators and their witnesses had carefully co-ordinated their stories was ignored.) Testimony by camp survivors that did not include the precise date or time an event occurred was dismissed as invalid (concentration camp inmates had neither watches nor calendars). For their part, many perpetrators used the concept nullum crimen sine lege, there is no crime without law. What they did – killing the handicapped, shooting Jews in ditches, facilitating deportations to camps – was not illegal because they had broken no law. And many German judges accepted this as valid. Between 6,000 and 8,000 Germans worked at the Auschwitz-Birkenau camp complex. Fewer than a dozen were brought to trial. “People who had been involved in mass murder were being recast as merely obedient servants of the state . . . sentences suggested that while mass murder had clearly been committed, the killings had been carried out by people who were not themselves murderers.” Elites – industrialists, Wehrmacht generals, doctors and a host of others – built new narratives that allowed them not only to evade punishment, but emerge as solid, eventually, and often very wealthy citizens. By the early 1950s a series of amnesty laws had lifted the sentences of many who had been convicted by the courts. Germans – many of whom had committed heinous acts – who returned after being imprisoned in Soviet POW camps were feted as heroes. Civil servants who had been removed from their positions because of denazification were quickly reinstated. In the Ministry of Expellees, Refugees and War Victims most of the bureaucrats had served the Third Reich. That meant that those victims who came looking for help and justice had to appeal to the very people who had facilitated their persecution. In West German courts the bench was, in Fulbrook’s words, “saturated with former Nazis”. Judges who had sentenced over 80,000 people to death during the Third Reich returned to their positions, sometimes sitting in judgment on perpetrators. They showed a decided sympathy towards these defendants, often concluding that a war criminal was blinded by the Nazis and could not, therefore, help acting as he did. Some judges ruled that, while defendants carried out crimes, they were obeying orders that they did not wish to obey and therefore could not be held guilty for their acts. One defendant who deported Roma and Sinti to Auschwitz-Birkenau was cleared by the court because he was engaged in “preventive crime fighting”.

This stroke a chord with me, because of the refrain repeated by many who followed the Demjanjuk case: he may have been a Nazi camp guard, or maybe he wasn’t; but, in any case, he was one of a handful of non-Germans who were tried by German courts once all of the main German perpetrators of wartime atrocities were safely in the grave. It was only when Germans were beyond the arm of the law that Germany rediscovered its disgust with the killings and showed any willingness to prosecute them fairly.

This, by the way, doesn’t refer to West Germany alone. This, again, via Lipstadt:

East Germany used the trials to try to prove that it was more committed to bringing justice than West Germany. Yet Fulbrook demonstrates that they were just as political in their approach. The East Germans conducted a complex balancing act. At the same time that they integrated former Nazis into German society, they punished a few, particularly if punishing them could be used to contrast their supposedly tough attitude towards war criminals with West Germany’s more evasive and forgiving one. Austria, for its part, simply declared itself Germany’s first national victim and virtually ignored pursuing justice, certainly concerning Jewish victims. Of the 9,800 people who worked at the Austrian concentration camp complex, Mauthausen, only forty-one were brought to trial. Twenty-nine were convicted. In each of these three countries there were powerful vested interests that helped perpetrators.

John Demjanjuk was a young Ukrainian lad who was drafted into the Soviet army and then captured by the Nazis, who gave him and his fellow prisoners the option of becoming a collaborationist hiwi or a common Soviet prisoner, with the likely outcome of painful, early death.

As the Soviet Union hadn’t signed the Geneva Conventions, Germany didn’t feel itself bound by them — while Western prisoners were, by and large, relatively well treated, Soviet prisoners suffered most appalling conditions of incarceration. Over half of the around six million Soviet prisoners of war died in Nazi Germany.

Again, consider John Demjanjuk. His country was invaded by Germany, which then forced him to make a terrible choice: and he chose to live. Years later, Germans had him extradited so he would stand trial in Germany, for having followed the orders of his German captors and bosses, whom earlier German tribunals had spared. Even the worst, sickest offenders found a helping hand in Germany, but only if they were German:

Many of the doctors who participated in the T4 programme of forced euthanasia received light sentences and were quickly rehabilitated. Herta Oberheuser, who was imprisoned in 1947 by the American Military Tribunal for experiments she conducted in Ravensbrück, was released after only five years of a twenty-year sentence and quickly returned to her medical practice. A West German court found that a doctor who killed children by starving them did not act from base motives. One who successfully deceived children about the fact that poison was being sprinkled on their food was ruled as not having acted maliciously. His five-year sentence was ultimately reduced to three. In 1949 a Hamburg court ruled that doctors responsible for killing people as part of the T4 programme were not guilty, because “the destruction of completely mentally dead individuals and of ‘empty husks’ of humanity” was not “absolutely and a priori immoral”. Other West German courts found that if defendants were not aware that murdering the disabled was against the law, then they were simply misguided and “confused about what was forbidden”. During the 1960s a new defence emerged in West Germany. The doctors and their staffs faced a “conflict of duties”. Ultimately they collaborated in order to save their staff from having to commit these crimes and to prevent even worse crimes from being committed. Some defendants argued that they remained at their posts because, while they had to kill some, they were able to prevent larger numbers from being killed. In most cases this was simply false. Nonetheless, it helped some escape punishment. Fulbrook aptly describes this as subjective “jurisprudence by emotions.”

The best news story I’ve read about Demjanjuk’s case was published by Harper’s Magazine in 2012. This is how it describes the aftermath of Demjanjuk’s last trial:

The court finds John Demjanjuk guilty of serving as an accessory to the murder of at least 28,060 Jews at the Sobibor death camp. It condemns him to five years in prison. Then, as if in an afterthought, it releases him, pending appeal. No gavel sounds the end of the trial. The judges collect their binders and quietly exit the room.

People linger in the courtroom and the hall outside. It’s as if no one is quite prepared to bring the most convoluted and lengthy case to arise from the crimes of the Holocaust to an end. Speaking to reporters, Ulrich Busch (Demjanjuk’s lawyer) announces his intention to lodge an appeal. The Nebenkläger, for their part, express satisfaction with the verdict. Their responses convey relief that the trial has finally concluded in a conviction, and melancholy that it failed to live up to the impossible expectations that burdened the proceeding.

In the hours and days to come, media coverage in Europe and America will reflect this same mix. Rabbi Marvin Hier, head of the Simon Wiesenthal Center, will call Demjanjuk’s release “an insult to his victims and the survivors,” while Deborah Lipstadt will opine, in the New York Times, that justice has been served—that however slowly its gears turn, turn they do. Others will speak of the “closure” the verdict represents for victims’ families, as if the success of a criminal trial might be measured by its therapeutic value. For their part, German prosecutors will eagerly announce their intention to use the fresh precedent to reopen dozens of cases against camp guards and officials even as they privately express doubt that any will go to trial.

Lost in the commentary is any recognition that in its modest, Solomonic verdict, Alt’s court has managed something no German court had since the founding of the Federal Republic. “‘Mass murder and complicity in mass murder’ was a charge that could and should be leveled against every single SS man who had ever done duty in any of the extermination camps”: Hannah Arendt wrote these words in the 1960s, and no German court paid heed—­until now.

Demjanjuk’s case is not isolated. Many other naturalized Americans came under the attention of the German and other justice departments — in almost every case, only if they weren’t German and had never been German. In 1978, US President Jimmy Carter signed H.R. 12509, which amended the Immigration and Nationality Act to provide for the deportation of anyone who participated in the persecution of Jews in Nazi Germany from March 1933 through May 1945; note that there’s no explanation in the text of what can be considered “persecution.”

After 1978, the Office of Special Investigations dedicated itself to the task of finding Demjanjuk types, under a somewhat strange authority: the OSI never actually prosecuted people for WWII war crimes, since the US had no jurisdiction. The Soviets would send the OSI “evidence” and the US would hand them over. As Murray Stein of the Justice Department told The Christian Science Monitor in 1986 regarding Soviet evidence (“Methods Questioned in War-Crimes Extradition,” 2/29/86), “We don’t challenge their (the Soviets’) papers and they don’t challenge ours. You can’t have relations with other governments if you don’t trust them.”

This led to much criticism, as the always informative David Cole, perhaps the world’s only expert on this subject, has noted. And most of the OSI’s critics came to the same conclusion: the OSI—possibly inadvertently, possibly not—was helping the Soviets wage a politically motivated war “to discredit anti-Soviet emigre communities” (L.A. Times, 4/27/86).

Demjanjuk’s wasn’t the only case where information provided by the Soviet Union for U.S. authorities turned out to be incomplete or misleading. But he was the only who ended up at the hands of Germany’s justice system: Frank Walus, a Polish immigrant living in Chicago, died of multiple heart attacks after a judicial ordeal in which he was mistaken for brutal Gestapo officer. Elmars Sprogis, from Latvia, also avoided extradition but not oprobium: his house was firebombed by alleged anti-Nazis.


About David Roman

Communicator. I tweet @dromanber.
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