The opinions expressed herein do not necessarily reflect those of the Board of Fellows of the Jerusalem Center for Public Affairs
No. 99, 1 July 2010 / 19 Tammuz 5770
In Munich, in what is one of the last trials dealing with Adolf Hitler's Third Reich,[1] the trial of ninety-year-old Ivan (John) Demjanjuk is now halfway through - a good opportunity for an interim assessment. It is worth reviewing for what Demjanjuk was indicted; the role the victims and their advisers play; the issues now under discussion in the courtroom; and how the trial is likely to end.
John Demjanjuk was born in 1920 in the Soviet Union, in Ukraine.[2] He emigrated to the United States after World War II. In applying for emigration, Demjanjuk wrote that during the war he had worked as a truck driver in Sobibor, a Polish village.[3]
Demjanjuk stood trial in Israel in the 1980s. He was suspected of having been the man nicknamed "Ivan the Terrible" in the Treblinka extermination camp near Warsaw. This man had operated the engines of the gas chambers and was responsible for the deaths of hundreds of thousands of human beings. Given the death penalty in Jerusalem, Demjanjuk appealed, maintaining that he was a victim of mistaken identity. He won the appeal, and in 1993 the Israeli government sent him back to the United States.[4]
A new German investigation started in 2008. Demjanjuk was deported to Germany in May 2009, and his trial began in November. If he remains healthy enough to take part, it is expected to last a full year. The authorities believe Demjanjuk worked as a simple guard, holding the lowest rank, in another extermination camp, Sobibor, where an estimated 170,000 Jews were murdered.[5]
This trial is a novelty. It marks the first time in German legal history that a non-German national has had to stand trial for the murder of non-German nationals that took place outside of Germany proper - namely, in Poland. Formally this part of Poland was not annexed by the Third Reich but constituted a separate political entity, the so-called Generalgouvernment. This trial is also novel in the sense that the mass murder in Sobibor is described as a single process, implicating all those present in Sobibor in the extermination. For the first time, a person who was low in the chain of command has been indicted even though there is no proof of him having committed a specific offense.[6] According to the indictment all the men working there - probably about sixty German SS-men and 120 Eastern Europeans trained in the Trawniki camp - herded the Jews to their death.[7]
According to the German authorities, Demjanjuk was a German civil servant who was trained in the village of Trawniki near Lublin, also in eastern Poland, like more than five thousand other East Europeans who were trained there. This status as a civil servant means that German judges have jurisdiction. The five thousand men from Trawniki served as the foot soldiers of the Holocaust.[8] On file is a statement by another of them, Ignat Danilchenko, who stated during his trial in the Soviet Union that he had seen Demjanjuk herding Jews to their death.[9] The authorities rely on researchers from the Office for Special Investigations in the U.S. Justice Department in maintaining that, while many Trawniki men deserted, Demjanjuk stayed put in Sobibor of his own accord. He therefore had the intention to work there; in other words, he was a willing foot soldier.[10]
The indictment deals in detail with the extermination in Sobibor of twenty-eight thousand persons. During the summer of 1943, when Demjanjuk allegedly worked there, some forty-five thousand Jews were murdered there,[11] most of whom originated from the occupied Dutch territories. Only the transports from Holland have been recorded in transport lists. Only the personal identities of the victims from Holland are known. None of the very few survivors of Sobibor still alive today have memories of Demjanjuk.[12] The German authorities say they do not need such witnesses because the historical documentation will suffice to answer these questions: was Demjanjuk there? Were Jews murdered there in that period? Did all of the Trawniki men herd Jews to their death? Would it have been possible for Demjanjuk to leave Sobibor? What did the SS commanders do with Trawniki men who abandoned their duties, tried to escape, and were caught?[13]
The defense maintains that the historical documentation placing Demjanjuk in Sobibor is forged. They claim that Demjanjuk was never there; or, if he was, he was in no way involved in the gassings; or, if he was involved in them, he stayed there because he knew or had heard that deserting Trawniki men were put to death by their German masters. If making a run for it was a viable option for Demjanjuk, his lawyers will stress his old age and the fact that he has already spent seven years of his life in an Israeli prison, including five years on death row.[14]
Since April 2009, a group of academic advisers have assisted the twenty-three Dutch nationals who have decided to participate in the trial.
German law entitles first-degree relatives of victims to do so, not as independent participants but as auxiliary prosecutors or co-plaintiffs. They or their legal representatives have full access to the files of the prosecutor, including during the pretrial stage. They may call and examine witnesses, file documents, deliver statements, and express a stance on how the defendant is to be punished.[15]
In Germany there is no application procedure for the first-degree relatives of the victims who wish to participate. One need only produce some proof of the family relationship with the victims. During the pretrial stage, the fees of the lawyers of these relatives of the victims are not paid by the state. During the trial and appeal stages, the state pays modest fees to these legal representatives.[16]
The academic advisers were needed because relevant expertise on German criminal law was lacking in the Netherlands.[17] The board of advisers has two chairmen: Professor Emeritus Abram de Swaan, a former university professor in the social sciences, and Professor Harmen van der Wilt, a specialist in international criminal law. The author of this article is the secretary of this board.
The members of the board are Professor Selma Leijdesdorff, a specialist in oral history; the brothers Julius and Carel Roos, both medical doctors; and the attorney Manuel Bloch. Bloch, who joined the German legal team in February of this year, attends all trial sessions and acts as the liaison with the German lawyers. Johan Klunder, the public prosecutor in Arnhem responsible for the prosecution of crimes committed in the Netherlands during World War II, provides informal liaison with the Dutch Justice Department. Naturally, the German legal team acts independently. They have their own responsibilities, and so does the board of advisers. The German legal team, incidentally, has a website of its own.[18]
After the formation of the board of advisers, the Sobibor Foundation, a private body, wrote letters to Dutch nationals who have been involved in commemoration ceremonies for relatives who were murdered in Sobibor. Ten of these people accepted the foundation's invitation to take part in the trial. Thirteen other Dutch men and women followed suit.[19] At a later stage nine non-Dutch nationals, four of them survivors of Sobibor, also joined in the proceedings. All in all, there now are thirty-two victims taking part, resulting in another novelty: never before in German legal history have so many victims participated in a Holocaust trial as co-plaintiffs.
Victims' participation in a Holocaust trial is essentially an Israeli invention. The prosecutor of Adolf Eichmann, Dr. Gideon Hausner, presented 110 victims of the Nazi persecution of the Jews as live witnesses in the courtroom as an "essential component" of this historic case. The witnesses' testimony was at "the heart" of the trial.[20] The prosecutor in the Auschwitz Trial in Frankfurt (1963-1965), Dr. Fritz Bauer, followed this example. He called 360 witnesses, 211 of whom had survived Auschwitz. During that trial twenty-one victims joined the proceedings as co-plaintiffs.[21]
The twenty-three Dutch co-plaintiffs along with their partners and their families needed various forms of support. Most of the co-plaintiffs involved in this trial were hidden as children during the Nazi occupation of the Netherlands and are now in their sixties. They were hidden by their natural parents and raised by Gentile foster parents. They feel morally obliged to take part in these proceedings out of loyalty to their family members who were killed in Sobibor. The victims give a human face to this trial,[22] but obviously were unaware of German legal procedures and at times were hesitant to return to the country from which the murderers of their families originated.
The Sobibor Foundation and the Bureau for Jewish Social Work (Joods Maatschappelijk Werk) have done their utmost in extending support. The board of advisers has played a modest role in organizing the legal representation, giving advice, and applying for grants. Professor Leijdesdorff has conducted lengthy interviews with the co-plaintiffs to help them organize their understanding of their family history. Well prepared because they had decided for themselves what to tell the Munich judges about their past, the victims were able to present themselves as militant victims.
The goal of the board is for the world to learn about the Holocaust in Sobibor, the industrial extermination that took place there. The board has repeated this time and again, and some of the victims have internalized this mantra:[23] the world must learn about Sobibor.
The goal is not to win the trial; it may be unwinnable. Perhaps the goal of informing the world about Sobibor is rhetorical as well, for the Jewish slaves who tried to escape the extermination sites had the same goal.[24] And, clearly, the position of hidden children can hardly be compared with that of Jewish slaves in extermination camps. In any case, this goal surpasses the traditional purposes of this trial.
Justice now entails, as Professor Cornelius Nestler of Cologne University, the leading counsel of the co-plaintiffs has put it, assessing whether Demjanjuk worked in Sobibor and what was the level of his responsibility. If it is proved that he was active there and exercised a certain degree of responsibility, he is to be punished accordingly. As Professor Nestler remarked, "I think in the same way that the grief of the people who lost their parents, very often their whole family, in Sobibor will not be over until their death, the responsibility of the people who did it will not be over until they're dead."[25]
The establishment of the truth and the goal of retribution go hand in hand. Professor Van der Wilt has rightly stressed in a newspaper article that apart from retribution but not entirely distinct from it, something else is at stake as well. The notion that the world is obliged to learn about Sobibor entails that the world ignored the Holocaust while it took place. To emphasize the novelty of these proceedings is to imply that German postwar justice was for decades insufficiently active.[26]
There are good grounds for asserting that for many years prosecutors in the Federal Republic remained passive. While judges dealt with co-perpetrators as if they were mere accomplices, they also were too lenient in their sentences. Less than .04 percent of the perpetrators of the Holocaust were sent to a German prison.[27] The world ignored the Holocaust and so did postwar German justice; both looked the other way for far too long.
There also is the goal of general prevention. This point was stressed by Professor De Swaan in the advisory board's internal discussions. The lower-level perpetrators of the Holocaust were ordinary people who acted out of group pressure in an atmosphere of nonaccountability, and in the belief that they would not be punished.[28] If the perpetrators and accomplices of crimes today are to be brought to justice, then the perpetrators and accomplices of yesterday must be as well.
In November and December last year, the victims had their days before the judges in Munich. Thanks to the Sobibor Foundation and the Bureau for Jewish Social Work, they were unified and effective. The presiding judge, Ralph Alt, having decided to invite them as witnesses who spoke about their youth,[29] allowed them to recount their very poignant family histories to the judges and the media. This was important as the defense portrayed the defendant himself as a victim of Nazism and of the proceedings.[30]
The victims, one by one, have explained what it means when one's only memory of one's natural parents is, for example, a short letter from one's mother written on the train heading for Poland.[31] Under the eye of the media the tragic meagerness of their memories, and their thoughts about their parents' suffering, have emerged. Experienced lawyers wept; in the special room that was provided for the victims in the court building, the victims hugged each other and their lawyers, forging a bond with the latter that usually is not so intense.
The advisory board has underestimated two matters. One is the shorter-term emotional effects on the victims of participating in the trial. While this is an "empowering experience"[32] for them in the longer term, it is painful in the shorter term.
The second is the importance of the victims remaining informed about the proceedings throughout their duration. Only experienced lawyers can fully grasp what is occurring in these proceedings, with nonexperts prone to grave misunderstandings. The board's task - and particularly that of Mr. Bloch, the Dutchman in the German legal team - is to repeat time and again that the outcome of the trial is uncertain.
For some of the participating victims, seeking a symbolic expression of the suffering of their families, the awareness of this uncertainty is a heavy burden.
The basic issues to be addressed are: did the defendant work in Sobibor? If so, were Jews murdered there during that time? Was there a division of labor? Were men such as Demjanjuk granted leave? Was it possible for the men from Trawniki to flee the camp? And if they did, and were caught, were they then executed by their SS masters?
Two survivors of Sobibor, Thomas Blatt and Philip Bialowicz, have testified that there was no division of labor there and all of the men trained in Trawniki herded Jews to the gas chambers. Dr. Dieter Pohl, a noted German historian, testified as an expert witness. His statement makes it highly probable that those men from Trawniki who left Sobibor without permission of their superiors and were arrested were indeed put to death. The author of this article has testified as a witness on the authenticity of the Dutch transport lists, having been challenged by the defense as an expert witness. Over the past weeks the authenticity of Demjanjuk's Trawniki identity papers has been discussed. The German expert witness Dr. Anton Dallmayer and the American expert witness Dr. Larry Stewart - who collected samples of documents from different archives and compared these documents - found these papers to be authentic, like the Israeli and American judges before him.[33]
The defense has repeated its statement that Demjanjuk is a victim of Germany.[34]
So far, then, it has emerged that Demjanjuk was present in Sobibor; during his presence Jews were murdered there; and there was no strict division of labor there. The debate on the possibilities of fleeing, and on the punishment of arrested deserters, has not yet ended. These are essential issues as far as the defendant's culpability is concerned.
A sentence is not to be expected before the beginning of 2011. The maximum sentence for complicity in murder in Germany is fifteen years; the minimum, three. It seems practically inconceivable that the judges will opt for much more than the minimum sentence because of the age of the defendant and his prison term in Israel.
If the judges do not find Demjanjuk guilty, he cannot return to the United States because he has finally lost his American nationality. He will spend his last years either in a prison cell or an old-age home in Germany. In all probability he will formally die as a free man since either the prosecutor or the defense will appeal the verdict, and that appeal stage will not begin before the spring of 2012.
The day Demjanjuk dies, the advisers to the victims taking part in the trial will ask themselves: was it worth it? While the relatives of the victims will be empowered by their participation in the long term, it brought them pain in the short term.
At the end of the day, the advisers will likely feel that the trial was worth it. The world must learn about Sobibor; mass murder has to be dealt with, in the interest of general prevention and retribution; and it must be known that the world - and postwar German justice - have looked the other way for far too long.
* * *
* This article is an annotated version of a lecture delivered at the International Criminal Court in The Hague on 21 April 2010. I thank my friends, Professor Harmen van der Wilt, Mr. Manuel Bloch, and Mrs. Jetje Manheim for their helpful comments on previous versions of this text.
[1] Perhaps the last trial will be the forthcoming one of Samuel K., an alleged guard at the Belzec extermination camp ("Witness in War Crimes Trial Could Face Indictment," Der Spiegel, 11 February 2010). The last convictions of Nazi criminals in Germany were the sentences to life in prison for the Dutch national Heinrich Boere (in Aachen, in March 2010) and for the German former infantry commander Josef Scheungraber (in Munich, in August 2009) ("Ex SS-Man Given Life for Murders," BBC News, 23 March 2010).
[2] On this region, see Amir Weiner, Making Sense of War: The Second World War and the Fate of the Bolshevik Revolution (Princeton: Princeton University Press, 2001), passim.
[3] See Johannes Houwink ten Cate, "The Activities of Wachmann John Demjanjuk (1940-1952)," http://www.chgs.nl/, 26.
[4] For what is by far the best overview of this complicated case, see Gitta Sereny, "The Case of John Demjanjuk," in Sereny, The German Trauma: Experiences and Reflections, 1938-2000 (London: Allen Lane, 2000).
[5] Jules Schelvis (with Bob Moore), Sobibor: A History of a Nazi Death Camp (London: Berg, 2007), passim.
[6] "A Very Ordinary Henchman: Demjanjuk Trial to Break Legal Ground in Germany," Der Spiegel, 10 July 2009. See Landgericht Bonn, "8 Ks 3/62, 23. Juli 1965," in Irene Sagel-Grande, H. H. Fuchs, and C. F. Rüter, eds., Justiz und NS-Verbrechen. Sammlung deutscher Strafurteile wegen nationalsozialistischer Tötungsverbrechen 1945-1966, Bd. 21, Lfd. Nr. 594 [German].
[7] For the indictment, see www.xoxol.org/dem/munich-docs/munich-docs-index.html. See also "Son of Nazi Victim Testifies at Demjanjuk Trial," Associated Press, 1 December 2009; "Alleiniger Daseinszweck, Juden umzubringen" (interview with Prof.Dr. Cornelius Nestler), Der Spiegel, 14 February 2010 [German].
[8] Peter Black, "Die Trawniki-Männer und die ‘Aktion Reinhard,'" in Bogdan Musial, ed., "Aktion Reinhard". Der Völkermord an den Juden im Generalgouvernement 1941-1944 (Osnabrück: Fibre Verlag, 2004) [German]; David Alan Rich, "Reinhard's Footsoldiers: Soviet Trophy Documents and Investigative Records as Sources," in John K. Roth and Elizabeth Maxwell, eds., Remembering the Future: The Holocaust in an Age of Genocide, vol. 1 (Houndmills, Basingstoke and New York: Palgrave, 2001). Further publications by Peter Black include: Black, "Police Auxiliaries for Operation Reinhard: Shedding Light on the Trawniki Training Camp through Documents from Behind the Iron Curtain," in David Bankier, ed., Secret Intelligence and the Holocaust (New York: Enigma Books/Jerusalem: Yad Vashem, 2006), 327-366; Black, "Askaris in the ‘Wild East': The Deployment of Auxiliaries and the Implementation of Nazi Racial Policy in Lublin District," in Charles Ingrao and Franz A. J. Szabo, eds., The Germans and the East (West Layette, IN: Purdue University Press, 2007), 277-309.
[9] See www.nizkor.org/ftp.cgi/people/d/danilchenko.ignat.t. See also "Doubt Cast on Auto Worker's Nazi Ties," CBS News, 18 March 2010. On the credibility of Soviet legal sources, see Alexander Victor Prusin, "‘Fascist Criminals to the Gallows!': The Holocaust and Soviet War Crimes Trials, December 1945-February 1946," Holocaust and Genocide Studies 17, 1 (Spring 2003): 1-30; Tanja Penter, "Local Collaborators on Trial: Soviet War Crimes Trials under Stalin (1943-1953)," Cahiers du Monde russe 49, 2-3 (April-September 2008): 1-24. ]
[10] See note 7.
[11] For estimates, see Schelvis, Sobibor.
[12] There is one exception, Alexei Vaitzen (Weitzen) who lives in Ryazan in the Russian Federation, but the condition of his memory is unclear. Furthermore, it is surprising that Vaitzen did not come forward as a possible witness at an earlier point; "Russian Says He Recalls Demjanjuk from Death Camp," Reuters, 12 February 2010.
[13] Communication to the author by Prof. Dr. Cornelius Nestler.
[14] Communication to the author by Mr. Manuel Bloch.
[15] www.buzer.de/gesetz/5815/a80107.html, Strafprozessordnung, article 397 [German].
[16] Ibid., article 397a [German].
[17] The most prominent Dutch expert on German criminal law vis-à-vis Nazi perpetrators is undoubtedly Prof. Emeritus Christiaan F. Rüter. He has repeatedly stated that Demjanjuk was a "small fish" for whom a trial would be unnecessary and unjust. See "Ivan the Terrible (or Just Plain John Demjanjuk)?," The Independent, 16 April 2009; Report Mainz, German television channel ZDF, 8 June 2009 (also available on YouTube) [German]; "De waarheid verjaart niet," Trouw, 28 November 2009 [Dutch].
[18] http://www.nebenklage-sobibor.de/.
[19] For personal portraits of the Dutch co-plaintiffs, see the website of the Sobibor Stichting: http://stichtingsobibor.nl, Trial Demjanjuk, Pressfolder, Portraits [Dutch].
[20] Hanna Yablonka, The State of Israel vs. Adolf Eichmann (New York: Schocken, 2004), 88.
[21] Irmtrud Wojak, Fritz Bauer 1903-1968. Eine Biographie (München: Verlag C. H. Beck, 2009) [German].
[22] For photographs of seven Dutch co-plaintiffs, see the magazine of Süddeutsche Zeitung 16 (2010), http://szmagazin.sueddeutsche.de/texte/anzeige/33534 [German].
[23] Letter to the editor by an anonymous co-plaintiff, Trouw, 31 March 2010 [Dutch].
[24] Jules Schelvis, ed., Ooggetuigen van Sobibor (Amsterdam: Ambo Anthos, 2010), 178 [Dutch].
[25] Cornelius Nestler, quoted in "Accused Nazi Arrives in Munich," New York Times, 13 May 2009.
[26] Harmen van der Wilt, "Brede Waarheidsvinding in Proces Demjanjuk," Nederlands Dagblad, 1 September 2009 [Dutch]. See also the interview with Nestler (note 7).
[27] According to De Mildt there have been some four hundred Holocaust convictions in Germany. See Dick de Mildt, In the Name of the People: Perpetrators of Genocide in ihe Reflection of Their Post-War Prosecution in Germany: The "Euthanasia" and "Aktion Reinhard" Trial Cases (The Hague: Martinus Nijhoff, 1996), passim. A conservative estimate of the number of Holocaust perpetrators and accomplices is one hundred thousand.
[28] Johannes Houwink ten Cate, "Ditmaal mag kampbeul berechting niet ontgaan," NRC Handelsblad, 4 May 2009 [Dutch]; Christopher R. Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (New York: Harpercollins, 1992), passim.
[29] Strafprozessordnung, art. 397 [German].
[30] "Die ganz grosse Lüge," Der Spiegel, 7 December 2009 [German].
[31] Rudie Cortissos, quoted in "The Legacy of Sobibor: Holocaust Survivors Hope Demjanjuk Case Will Bring Closure," Der Spiegel, 27 November 2009.
[32] About the Court, Structure of the Court, Victims and Witnesses, Victims before the International Criminal Court: A Guide for the Participation of Victims in the Proceedings of the Court, http://www.icc-cpi.int/, 20.
[33] See http://www.nebenklage-sobibor.de/ [German]. Also see: "Zoff um den Ausweis", Süddeutsche Zeitung, April 14, 2010 [German].
[34] "Demjanjuk äussert sich erstmals vor Gericht," Der Spiegel, 13 April 2010 [German].
* * *
Professor Johannes Houwink ten Cate studied contemporary and socioeconomic history at the University of Utrecht, the Netherlands. From 1985 to 2002 he worked as a researcher at the Netherlands Institute for War Documentation. Since 1989 his primary topic of interest has been the Nazi persecution of the Jews in the occupied Dutch territories. Since 2002 he has been professor of Holocaust and genocide studies at the University of Amsterdam.
=========================