‘A Trial By History’ The Legal and Historical Significance of the Munich trial of John Demjanjuk

Guy Elston 12277916

Thesis submitted in partial fulfilment of the requirements for the degree of Master of Arts History - Holocaust and Genocide Studies Universiteit van Amsterdam Thesis Advisor: Dr. Karel Berkhoff Second Reader: Prof. Dr. Nanci Adler June 30th, 2020

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ABSTRACT

The Munich trial of John Demjanjuk of 2009-2011 was the final act in the defendant’s decades of legal travails. It was widely covered and commented upon by an international academic and media audience. Reaction to the trial was highly divided, thanks in large part to the exceptional nature of its legal processes in comparison to previous German trials of low-ranking perpetrators of the Holocaust. This thesis questions what the trial’s significance was both in terms of its place in the legal record of German Holocaust prosecutions, and also in German collective memory of the Holocaust.

A brief history of German coming-to-terms with the Holocaust is established, as well as the legal record of Holocaust trials in Germany, to set the context for the Munich trial. Separate historiographies cover Demjanjuk’s wartime activities, his previous trial in Jerusalem, and the Munich trial. Particular attention is given to legal scholars, helping to determine the legally noteworthy aspects of the Munich trial. These include the treatment of the matters of functional participation and putative necessity. The most significant aspects of media and academic reaction to the trial are established. These include the defendant’s age and infirmity, his alleged victimisation during the Second World War, his alleged revictimisation by the trial’s processes, and the alleged political motives of the trial.

The trial brought about a confrontation with matters of functional participation and collaboration in the perpetration of Holocaust, and its verdict exemplified the societal developments in German attitudes towards the Nazi era. The conviction relied in large part upon the involvement of historical expert testimony in the courtroom, meaning that both retributive and didactic aims were met with some success. The trial’s greatest significance is in representing a legal institutionalisation of a functionalist interpretation of Holocaust perpetration, grounded in decades of developments made in Holocaust research. The highly belated nature of the trial ultimately limited its success, however, as the legal developments came too late to take on much more than a largely symbolic significance.

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Table of contents

Introduction…………………………………………………………………………………………………. 4

1. Holocaust memory and Holocaust prosecution in Germany in context…8 1.1 A history of Vergangenheitsbewältigung...... 9 1.2 German prosecution of the Holocaust...... 12 1.3 Memorial success; legal failure...... 16

2. A brief biography of John Demjanjuk...... 18

3. The legally significant aspects of the trial …………………………………………….. 23 3.1 The hybrid international and domestic nature of the trial...... 23 3.2 A new legal framework...... 24 3.3 Putative Necessity...... 26 3.4 Victim testimony – the role of the Nebenkläger...... 28 3.5 The verdict and lack of appeal...... 29 3.6 Further prosecutions...... 29 3.7 Conclusion………………………………………………………………………………………. 30

4. Media and academic reaction to the trial ……………………………………………. 32 4.1 Age and infirmity……………………………………………………………………………… 32 4.2 Political motives of the trial...... 36 4.3 Demjanjuk’s alleged victimhood during the Second World War...... 39 4.4 Demjanjuk’s alleged victimisation by the trial...... 43 4.5 Conclusion...... 48

5. The trial in retrospect……………………………………………………………………………….. 50 5.1 Retribution vs education: The trial in the legal record...... 50 5.2 The trial and Vergangenheitsbewältigung………………………………………… 54 5.3 The trial and closure………………………………………………………………………… 57

Conclusion…………………………………………………………………………………………….. 60

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Introduction

The Munich trial of John Demjanjuk, formerly Ivan Demjanjuk, took place between November 2009 and May 2011. He was tried as an accessory to murder and convicted on 12 May 2011 on 27,900 counts of that charge. The crimes for which he was convicted were committed at the Sobibor death camp in 1943. This trial was the last act in decades of legal travails. Demjanjuk had first been deported from his adopted home of the United States of America in 1986, already after almost a decade of deportation processes, and tried in Jerusalem for crimes against humanity. Sentenced to death, then subsequently exonerated in 1993 on the grounds of mistaken identity and returned to the USA, the court in Munich charged him in 2009 with crimes committed in a different location and under a different identity than those at issue in Jerusalem. His conviction, sixty-eight years after those crimes, technically never came into effect, as he died before his appeal could be heard. American legal scholar Lawrence Douglas described Demjanjuk’s legal saga as “the most convoluted, lengthy, and bizarre criminal case to arise from the Holocaust”.1

The Munich trial of John Demjanjuk gained “worldwide attention from the very beginning”, as German public-funded broadcaster Deutsche Welle reported2, for it had generally been believed that with it, the prosecution of Nazi criminals in Germany came to an end. The trial was therefore commonly described as the last Nazi trial, and its significance to the legacy of German prosecution of Nazi criminals was widely commented upon. The media in Germany, the Netherlands, Ukraine, the US and Israel gave the trial extensive coverage, and the discourse took place over a range of media, particularly in newspapers and online.3 Although interest in the case declined as the trial proceedings dragged on,4 the conclusion of the trial again brought about mass coverage in the international media and in Germany, where Demjanjuk’s conviction precipitated a “confrontation with the Nazi past” of the nation.5 Reactions to the trial were many and divided, and the significance and value of the trial was highly debated. From both the quantity and the force of reactions to the trial, both German and international, it was clear that the Demjanjuk Munich trial captured popular and scholarly attention and took on great significance to a wide variety of observers. To them the trial forced a confrontation

1 Lawrence Douglas, The Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes Trial, (New Jersey: Princeton University Press, 2016), 3 2 Cornelia Rabitz, ‘Accused Nazi helper John Demjanjuk: Murderer or Victim?’. Deutsche Welle, May 11, 2011 3 Christian Pentzold, Vivien Sommer, Stefan Meier and Claudia Fraas, ‘Reconstructing media frames in multimodal discourse: The John/Ivan Demjanjuk trial.’ Elsevier, 12 (2016), 33 4 Douglas, The Right, 246 5 Jennifer Clibbon, ‘What the Demjanjuk verdict means for war crimes prosecutions’. CBC, May 13, 2011 4

with both the history of how the Holocaust had been prosecuted, and the history of how the Holocaust had been remembered.

Prosecutions of Nazi crimes in Germany faced myriad legal obstacles since the dissolution of the Third Reich. It has generally been considered that the Federal Republic of Germany, and subsequently the reunified German state, failed to convict Nazi criminals to an appropriate extent or severity; the German Holocaust survivor and writer Ralph Giordano described this failure as the nation’s “second guilt”.6 Conversely, the German nation, after a long period of obfuscation of the societal knowledge of, and role in the perpetration of, the Holocaust, is widely admired for ultimately facing up to the atrocities of the Third Reich, and for having institutionalised the memorialisation of the Holocaust in German society. The term Vergangenheitsbewältigung is used to refer to this ‘coming- to-terms with the past’ that German society has undergone, regarding the crimes of the Third Reich. Scholarship has demonstrated that earlier Nazi trials in Germany stimulated public debate and influenced the development of Vergangenheitsbewältigung; and, in turn, that changes in societal opinion regarding the Holocaust, and a sense of responsibility for its perpetration, helped to bring about criminal trials of Nazi crimes. The separate processes of judicial and societal reckoning with the crimes of the Third Reich therefore have had a great influence on each other, despite the difference in their levels of perceived success.

One reason why the debate surrounding the Munich trial reached great intensity was the exceptional nature of the processes and verdict, that broke with long-established legal precedents of Holocaust trials in Germany. The trial resurrected debates over the very possibility of justice after genocide, and stimulated recognition of the societal, extra-legal functions of a criminal trial of a genocidal atrocity. It raised questions of whether the true purpose of the trial of a génocidaire, particularly such a belated one as Demjanjuk’s, should be retribution, or education. The era of living Holocaust memory shall soon come to an end, as the remaining survivors and perpetrators of the Holocaust will all have passed away; it is therefore valuable to question now what legacy this belated, prominent trial has left both in terms of the record of Holocaust prosecutions, and the process of German coming-to-terms with the Holocaust.

As its main question this thesis shall ask: what was the significance of the Munich Demjanjuk trial to German societal and legal reckoning with the Holocaust? To construct an answer, it will first describe German Vergangenheitsbewältigung and German prosecution of Nazi crimes before the Munich trial. It will then question what aspects of the trial were legally ground-breaking and significant. The thesis shall then examine in the depth the public, journalistic and academic reactions, both in

6 Klaus Wiegrefe, ‘Why the Last SS Guards Will Go Unpunished’, Der Spiegel, August 28, 2014 5

Germany and internationally; and finally, it shall examine the trial’s long-term impact on legal and societal understanding of the Holocaust.

Methodology

The thesis shall use as primary sources a wide range of media reactions to the Demjanjuk trial, primarily from German, Israeli, Ukrainian, American and British media sources, but also from other nations. These media reactions, which will mostly be used in Chapters 4 and 5, are essential for establishing the key points of discussion surrounding the trial’s contribution to a development of collective memory, and to the German legacy of Holocaust prosecution. Although particular attention will be given to German media sources, a look at reactions from other nations and cultures will help to illuminate the specifically German nature of Vergangenheitsbewältigung. The process of Vergangenheitsbewältigung has historically always been a subject of great scrutiny from international journalistic and academic communities, and it is therefore essential to consider international assessments of the Demjanjuk trial’s contribution to this process.

The thesis shall also use a wide range of secondary literature. Three separate historiographies shall be established, spanning the breadth of Demjanjuk’s life and legal travails: a first set of works examining the role of the so-called Trawniki men during the Holocaust, of which Demjanjuk was one; a second set comprising literature about Demjanjuk’s trial in Jersualem; and lastly, the literature about the Munich trial, with the work of legal scholars given particular attention. A few books have been of particular use, including The Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes Trial (2016) by the American legal scholar Lawrence Douglas, which details the many twists and developments in Demjanjuk’s legal travails over the decades leading to his conviction in Munich. Douglas finds great value in the Munich trial, arguing that it developed a theory of culpability for crimes of systematic mass-murder better than any previously seen in Holocaust trials, and demonstrated that legal systems can learn from past mistakes. For Douglas, the Demjanjuk trial, although belated, was a cause for a celebration. The 2018 publication Reckonings: Legacies of Nazi Persecution and the Quest for Justice, by the British professor of German history Mary Fulbrook, which is primarily a documentation of the failures of post-war German efforts to bring Holocaust perpetrators to justice, is also of great use in establishing what was extraordinary about the Munich Demjanjuk trial. Additionally, Holocaust, Genocide and the Law: A Quest for Justice in a Post-Holocaust World (2016) by Michael Bazyler, the 1939 Society Law Scholar in Holocaust and Human Rights Studies at Chapman University, is referred to extensively; this book demonstrates how poorly the law has historically been

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applied and interpreted in Holocaust trials, and aims to consider the atrocities of Holocaust through a legal framework.

The first chapter shall discuss the meaning and history of Vergangenheitsbewältigung and provide a brief history of Holocaust prosecution in Germany, focusing particularly on the legal precedents and obstacles that prevented more successful prosecutions. The second chapter shall give a brief biography of John Demjanjuk and his legal travails. The third chapter aims to determine what was legally significant and ground-breaking about the trial. The fourth chapter shall examine reactions to the trial, popular, journalistic and academic, establishing some key frameworks of the wide-ranging and divisive discourse. The final chapter shall reflect upon the trial’s legacy, in terms of the meaning and purpose of Holocaust trials, and the development of Holocaust memory. It shall also question what the ultimate results of the trial were, in terms of closure, and of the future.

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Chapter 1: Holocaust memory and Holocaust prosecution in Germany in context

The notion of collective memory refers to the processes by which historical events are recollected in a group context. Sociologist Ronald J. Berger relates that this notion entails “both the remembering and the forgetting of the past”,7 and as the development of Holocaust memory in German society has been an ongoing process since 1945, so the specifics of what has been remembered and forgotten about the Holocaust have changed in Germany. It has been argued by Belgian historian Nico Wouters that the absence of a state-sponsored truth-seeking model in post- war Germany meant that German coming-to-terms with the Holocaust was obligated to “follow its own societal course”,8 and it is evident that this process of collective memorialisation underwent several stages. These developments have been accompanied and influenced by criminal prosecutions of Nazi crimes, ever since the Nuremberg trials in the war’s immediate aftermath, through high profile proceedings such as the Ulm Einsatzgruppen trial of 1958 and the Auschwitz trial of 1963, and through many other prosecutions. In 2004 German historian Dieter Pohl wrote that “the crimes of the Third Reich are at the centre of German historical consciousness”.9

There can be little doubt as to the continued significance of the Holocaust to the German national psyche. The term Vergangenheitsbewältigung (‘coming to terms with the past’, or ‘mastering the past’) refers to the complex and often painful efforts of generations of Germans to address and comprehend the crimes of Nazi Germany. The related term Aufarbeitung (‘coping strategy’) also exists for avoidant or apologist forms of Vergangenheitsbewältigung that may have aimed to ease or obscure the guilt and pain of remembering the Holocaust.10 This chapter shall attempt to broadly summarise the development of Holocaust memory in Germany from 1945 until the Demjanjuk trial, and to give a brief history of prosecutions of Nazi crimes in Germany in that time. The chapter shall explore the relationship between Holocaust memory and Holocaust prosecution in Germany, and question how the two processes have influenced each other. This shall serve as a history and a context for the Munich Demjanjuk trial of 2009 to 2011.

7 Ronald J Berger, The Holocaust, Religion and Politics of Collective Memory: Beyond Sociology. (London: Transaction, 2014) 158 8 Wouters, ‘Transitional’, 410 9 Dieter Pohl, ‘Contemporary Responses to the Shoah in Germany and Eastern Europe’ in Contemporary Responses to the Holocaust, ed. Konrad Kwiet and Jurgen Matthaus (New York, Praeger, 2004), 22 10 Annette Weinke, ‘West Germany: A Case of Transitional Justice avant la lettre?’ in Transitional Justice and Memory in Europe, ed. Nico Wouters (Cambridge: Intersentia Publishing, 2014), 26 8

A history of Vergangenheitsbewältigung

The immediate aftermath of the Second World War, and the nascent attempts in German society to come to terms with the Holocaust, were characterised by the responsibility for Nazi crimes being pinned on a small number of individuals, and the general belief among Germans that they too had been victims of the Third Reich. A post-war Allied media campaign to spread awareness of the Holocaust within Germany, and to spread the notion of collective guilt for the atrocities, was largely rejected by the German public, who in response made “counterfactual claims about their own victimization”.11 To the extent that the Second World War was actively remembered in the post-war Federal Republic of Germany, Germans portrayed themselves largely as victims of the war.12 Wouters argued that this narrative of self-victimisation functioned similarly to that of the popular narrative of heroic wartime resistance in post-war France. Collective memory was functioning as a coping strategy, one that built a palatable and “consensual politics of memory” in a traumatised society.13 A distortion of the memory of Holocaust victimhood was also present in the Soviet-controlled German Democratic Republic, as there, communism itself was portrayed as the chief victim of Nazi crimes.14 In West Germany, the popular argument for the victimhood of the German people was that German society at large was utterly unaware of the Holocaust, and only Hitler and a small group of high-level perpetrators were responsible.15 This historical narrative, adopted by early scholars of the Holocaust as well as the general public, held that the Holocaust was a “secret conspiracy led by Adolf Hitler and his cronies”, and that the perpetrators of the Holocaust were considered to be only the leaders of the Third Reich and the Waffen-SS men in the camps who carried out the executions.16 The Wehrmacht was said to be blameless and to have acted purely out of military concerns only during the war.17 The argument that the Holocaust was the result of the ideology and design of a small circle of high-level perpetrators, with the resulting implication of diminished wider societal responsibility for the events, is known as the ‘intentionalist’ interpretation of the events.18

11 Berger, The Holocaust, 148 12 Michael Bazyler, Holocaust, Genocide and the Law: A Quest for Justice in a Post-Holocaust World (Oxford, Oxford University Press, 2016), 109 13 Nico Wouters, ‘Transitional Justice and Memory Development in Europe’ in Transitional Justice and Memory in Europe, ed. Nico Wouters (Cambridge: Intersentia Publishing, 2014), 379 14 Pohl, ‘Contemporary Responses’, 21 15 Pohl ‘Contemporary Responses’, 20 16 Johannes Houwink ten Cate.. ‘The Enlargement of the Circle of Perpetrators of the Holocaust’ Jewish Political Studies Review 20, no.4, (2008): 52 17Mary Fulbrook, Reckonings: Legacies of Nazi Persecution and the Quest for Justice, (Oxford: Oxford University Press, 2018), 222 18 Richard Bessel, ‘Functionalists vs. Intentionalists: The Debate Twenty Years on or Whatever Happened to Functionalism and Intentionalism?’ in German Studies Review 26, no. 1 (2003), 15 9

The 1960s saw emerging challenges to the popular conceptions of German victimhood and limited societal responsibility. Left-wing student movements brought about “a countervailing trend in German memory construction”, as a new generation of Germans challenged their elders’ accounts of Nazi crimes19. The seminal 1961 work of Raul Hilberg, The Destruction of the European Jews, is credited with demonstrating that a vast network of state infrastructure was necessarily responsible for the Holocaust to happen, and scholars following Hilberg’s trajectory described how functionaries, administrators and bureaucrats across Europe had been actively involved in the development and enactment of Nazi anti-Jewish policies.20 It was not until the 1980s, however, that a widespread shift in the predominant trend of Holocaust memory in Germany began, stimulated by fresh interest and research from a new generation of Germans.21 An appropriately fierce public debate took place in the form of what was termed the Historikerstreit. This scholarly and popular debate, an “extraordinarily intense, at times almost hysterical public debate over the history of National Socialism and the Holocaust”,22 was a clash between the proponents of intentionalism and its opposing theory, functionalism, that argued that the decision-making processes that drove the Holocaust were spread over much of Nazi German society and its wartime sphere of influence. The Historikerstreit was partly triggered by the unprecedented negative coverage and significance given to the 50th anniversary, in 1983, of the Nazis coming to power, which alarmed certain conservatives.23 At the time, the German historian Ernst Nolte argued that the Holocaust was in no way unique and was similar to other genocides, merely with a different method of killing,24 and the writer Hellmut Diwald sought to restore German pride in the glory of its nation’s history by minimising the Third Reich’s presence in his popular history of Germany.25

The success of the functionalists in the Historikerstreit was in no small part due to the confrontation with East German history that occurred after reunification in 1989,26 as Holocaust research “advanced measurably” in the wake of the collapse of the Soviet Union in 1991.27 Research in the newly opened Eastern European archives shattered the common belief that Nazi crimes had

19 Berger, The Holocaust, 148 20 Houwink ten Cate, ‘The Enlargement’, 53 21 Pohl, ‘Contemporary Responses’, 21 22 Ulrich Herbert, ‘Holocaust Research in Germany’ in German Yearbook of Contemporary History: Holocaust and Memory in Europe, ed. Thomas Schlemmer and Alan E Steinweis (Berlin: Institute for Contemporary History, 2016), 31 23 Berger, The Holocaust, 156 24 Danny Ben-Moshe, ‘The State of Holocaust Negation’ in Contemporary Responses to the Holocaust, ed. Konrad Kwiet and Jurgen Matthaus (New York, Praeger, 2004), 145 25 Berger, The Holocaust, 156 26 Weinke, ‘West Germany’, 29 27 Yehuda Bauer, ‘Contemporary Research on the Holocaust’, in Contemporary Responses to the Holocaust, ed. Konrad Kwiet and Jurgen Matthaus (New York, Praeger, 2004), 5 10

been committed primarily on German soil.28 All this enabled greater understanding of the Holocaust and its processes, and furthered the cause of Vergangenheitsbewältigung. There was, however, a simultaneous rise in right-wing extremism in East Germany, a region that had been deprived of the same decades of the development of Holocaust memory that West Germany had experienced.29

It was in the late 1980s that the West German government began to specifically commemorate Jews in official memorials of the Holocaust,30 and in 1991 Günther Dechet, the leader of the far-right Nationaldemokratische Partei Deutschlands, received a prison sentence for Holocaust denial.31 In 1994 Holocaust denial became a specific offense in the German penal code, and in June 1999 the Bundestag voted to place a memorial for Jewish victims of the Holocaust in central Berlin.32 A public exhibition Crimes of the Wehrmacht in the 1990s dispelled the myth that the Germany army had not participated in the Holocaust.33 The great success in Germany of Daniel Goldhagen’s 1996 book Hitler’s Willing Executioners,34 a savage indictment of the antisemitism of pre-war German society (the scholarly value of which has largely been discredited by Holocaust scholars), was indicative of a new willingness among Germans to hold German society as a whole as responsible for the Holocaust, as part of what German historian Jürgen Matthäus called the “country’s renewed search for identity after reunification”.35

A memorial culture of admitting responsibility and apologising for the Holocaust became a kind of “brand identity” for the newly reunited Germany,36 as the twenty years following reunification saw the “institutionalisation” of a Holocaust memory regime.37 Israeli historian and prominent Holocaust scholar Yehuda Bauer has praised the extensive program of Holocaust education in German schools and universities,38 and Berger concluded from the wide array of Holocaust memorials and museums in Germany that young Germans were (and are) interested in learning about Germans as perpetrators of the Holocaust and are generally intolerant to claims of German victimhood.39 A large proportion of wartime German society, as well as other European societies, is now widely considered to accept some

28 Pohl, ‘Contemporary Responses’, 19 29 Pohl, ‘Contemporary Responses’, 21; Ben-Moshe, ‘The state’, 147 30 Pohl, ‘Contemporary Responses’, 20 31 Ben-Moshe, ‘The state’, 147 32 Pohl, Contemporary Responses’, 22 33 Fulbrook, Reckonings, 222-3 34 Berger, The Holocaust, 161 35 Jurgen Matthaus, ‘Agents of the Final Solution – Perpetration in Historical Perspective’ in Holocaust Historiography in Context: Emergences, Challenges, Polemics and Achievements, ed. David Bankier and Dan Michman (New York: Berghahn Books, 2009), 332 36 Wouters, ‘Transitional Justice’, 375 37 Eric Lagenbacher, ‘Still the Unmasterable Past? The Impact of History and Memory in the Federal Republic of Germany.’ German Politics 19, no.1 (2010), 24 38 Bauer, ‘Contemporary Research’, 11 39 Berger, The Holocaust, 162 11

degree of responsibility for the perpetration of the Holocaust,40 as the extent to which local populations collaborated with Nazi policies is now well known. The notion of a general success of German society’s process of Vergangenheitsbewältigung since the Holocaust, and international admiration for this process, led American legal scholar Lawrence Douglas to write that “politically and culturally, Germany is the poster boy for national self-reckoning”.41

A brief history of prosecution of the Holocaust

The Nuremberg trials of 1945 and 1946 were a ground-breaking attempt to punish the perpetrators of international crimes. They were, however, administrated and adjudicated entirely by the Allied powers, with no German input or control. It was therefore perhaps inevitable that the German public, and German legal system, would struggle to come to terms with a judicial process from which it was totally divorced. Among post-war West German jurists there was a tendency of “demonization of Nuremberg and everything it represented”,42 and German courts in general rejected the concept of ‘crimes against humanity’ as introduced and enshrined at Nuremberg.43 Meanwhile, the Nuremberg trials were also instrumental in cementing the popular notion that only a small number of perpetrators was responsible for the Holocaust; as historian Gerard Reitlinger put it, the convictions allowed for the SS to become the “alibi of a nation”.44 The Allied successor trials, held in the aftermath of the Nuremberg trials, such as that of the Luftwaffe general Albert Kesselring in 1947, helped to solidify the image of the “decent German soldier”, who was contrasted with the SS and considered blameless in comparison.45

A key aim for the post-war German judicial system was the upholding of German Rechtsstaat (‘rule of law’) as independent of the universalist ideas imposed by the Allies at Nuremberg.46 While the concept of genocide was introduced in German domestic criminal code in 1954, jurists concluded that this concept could not be retroactively applied to Nazi crimes.47 It should also be noted that by the mid-1950s approximately eighty percent of Nazi-era judges and prosecutors in West Germany had returned to their roles, as the process of denazification came to an end.48 Subsequent prosecutions of Nazi crimes in Germany were therefore conducted largely by Nazi-era jurists under pre-existing

40 Houwink ten Cate, ‘The Enlargement’, 151 41 Douglas, The Right, 10 42 Bazyler, Holocaust, 110 43 Douglas, The Right, 144 44 Matthaus, ‘Agents’, 328 45 Fulbrook, Reckonings, 222 46 Weinke, ‘West Germany’, 47 47 Douglas, The Right, 144 48 Bazyler, Holocaust, 110 12

German statutory law, the Strafgesetzbuch, which American historian Devin O. Pendas has described as ill-equipped, for “fundamentally lack[ing] the theoretical apparatus to grasp and render judgement on systematic, bureaucratically organized, state-sponsored mass murder”.49

The Jewish German judge Fritz Bauer, who played a key role in the Frankfurt Auschwitz trials of 1963, wrote in the 1960s that the post-war German judiciary did not consider the restrictions of Strafgesetzbuch in prosecuting Nazi crimes as a shortcoming, on the contrary: they “defended the view that ‘our good old law’ is completely sufficient” and rejected calls to alter the existing criminal statute in order to facilitate the prosecution of Holocaust perpetrators.50 As early as 1965 Yehuda Bauer related his concern that the insistence that existing German statutory law be maintained in Nazi trial proceedings was in part a deliberate attempt to “atomize the enormity of the crimes and of the guilt”.51

A clear and significant limitation of the Strafgesetzbuch was that of the statute of limitations for manslaughter, a mere fifteen years.52 This meant that after 1960 German prosecutors were unable to charge Holocaust perpetrators with any crimes except murder and aiding or abetting murder (the crime that Demjanjuk would eventually be charged with in Munich). This severely limited the effectiveness of the Ludwigsburg Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes (‘Ludwigsburg Central Office’), which had been established in 1958 to investigate Nazi crimes committed beyond German borders.53 The statute of limitations might not have proved to be such an obstacle for Holocaust prosecutions if it were not for the restrictive definition of murder in German law, which differs from Anglo-American legal traditions law in its approach to the matters of motivation and individual culpability. In German law the intention of a killing is less significant than the motive. For a crime to considered as murder, it must be demonstrated to have been committed out of ‘base motives’, such as blood lust, sexual desire or greed. 54 To demonstrate that an individual operating under command in the industrial infrastructure of the Holocaust possessed such base motives proved to be difficult.

The Strafgesetzbuch also required evidence of specific crimes for conviction, meaning that Nazi perpetrators could not be convicted merely on account of their role within a group. Adalbert Rückerl, then head of the Ludwigsburg Central Office, stated in the 1970s that “within penal law, there is no

49Devin O Pendas, ‘The Frankfurt Auschwitz Trial’ in Genocide: A Reader, ed. Jens Meierenrich (Oxford: Oxford University Press, 2014), 329 50 Elisabeth Buttner, ‘”Epilogue of shameful history?” – the trial against John Demjanjuk and the criminal prosecution of former Auschwitz capos after 1945 in Germany – a few remarks.’ Security Dimensions: International and National Studies 13 (2015), 61 51 Buttner, ‘Epilogue’, 61 52 Pohl, ‘Contemporary Responses’, 20 53 Fulbrook, Reckonings, 247 54 Pendas, ‘Frankfurt Auschwitz’, 329-330 13

room for the assumption that the sole membership in a department or unit which was involved in a crime, is sufficient as a prima facie evidence for a criminal offence”.55 German prosecutors therefore focused on so-called Exzesstäter, those who could be proved to have committed excessive acts of cruelty. This prosecutorial strategy failed to grasp the nature of Holocaust perpetration, as it perceived only personal motivations and the relative cruelty of defendants, rather than perceiving these individuals as part of a “wider crime complex”.56 Commentators such as Douglas have argued that here, the German judiciary “tortured history” by pigeonholing Nazi crimes into the pre-existing criminal statute.57

In addition, the crime of aiding and abetting murder was made even harder to prosecute by a 1968 change to the criminal code, after which an accomplice had to share the same mens rea as the actual perpetrator, meaning that an accomplice had to possess the same base motive as the murderer.58

A further impediment to securing convictions in Holocaust trials was the frequent success of the defence of Putativ-Notstand (‘putative necessity’), to which German courts handling Nazi crimes were “exceptionally receptive”.59 The legal term Befehlsnotstand (‘necessity to obey orders’) was frequently used to argue that a defendant had no choice but to obey an order, such as that to kill; to refuse would have been to endanger their own life.60 German jurists even accepted the argument that a defendant would only have to have believed that he had no choice but to follow an order, and would not be obligated to prove that he actually lacked it, or would have been in actual danger if he refused.61 The putative necessity defence was pioneered in 1950 in the trial of Johann Klier, who worked first in the bakery at Sobibor and was subsequently the head of the Schuhkommando, a unit responsible for the collecting, sorting and repair of victims’ shoes. The putative necessity defence was used successfully throughout the 1960s and 70s at trials such as that of Sobibor personnel in 1966, producing the acquittal, among others, of Erich Lachmann, Ivan Demjanjuk’s commanding officer at Sobibor.62 The success of the putative necessity defence made German courts very reluctant to charge non-Germans for Holocaust perpetration,63 as such foreign defendants were able to argue even more

55 Buttner, ‘Epilogue’, 55 56 Fulbrook, Reckonings, 349 57 Douglas, The Right, 256 58 Bazyler, Holocaust, 110 59 Douglas, The Right, 220 60 Richard Rashke, Useful Enemies: America’s Open Door Policy for Nazi War Criminals (New York: Delphinium, 2015), 509 61 Douglas, The Right, 220 62 Douglas, The Right, 221 63 Douglas, The Right, 224 14

easily (and perhaps more convincingly) that their lives would have been in danger if they had refused an order to kill.

The combined effect of the restrictive application of Strafgesetzbuch and the efficacy of the putative necessity defence was that typically, only the most demonstrably cruel Holocaust perpetrators were convicted. The pre-Historikerstreit trials of the 1960s and 1970s took place, as has been described, in a society that largely held onto the notion that a very small section of society was responsible for the Holocaust. The failures to secure more widespread convictions of Holocaust perpetrators can be seen both as a symptom of, and contributing factor to, this prevailing belief. These flawed and limited Nazi trial proceedings helped to enshrine the popular image of Holocaust perpetrators as pathological and atypical, a notion that was popular with “a German public still seeking its own moral exoneration”.64 These proceedings “segregated the Germans from the Nazis” in the public eye.65 The last major death camp trial to take place was the Majdanek trial of 1975 to 1981. The trial saw a public clash between commentators who were highly critical of the legal record of Nazi trials, and between Nazi sympathisers or obfuscators.66 Thus, paradoxically, the immediate post- reunification period that saw the country’s Nazi past memorialised so effectively saw only a small number of accompanying trials of Nazi criminals.67

The meagre record of decades of trials of Nazi crimes in West Germany, and subsequently reunified Germany, is well-documented. Until 2005 prosecuting authorities initiated proceedings against over 170,000 suspects, of whom 14,693 were tried, of whom 6,656 were convicted. Only 1,147 of these convictions were for homicide, only 9% of prison terms sentenced were for more than five years,68 and only 169 individuals received life sentences.69 Bazyler has argued that the presence of any commitment to bring perpetrators to justice “makes the post-Holocaust period different from the aftermath of other earlier genocides”,70 suggesting that the German record in Nazi trials perhaps deserves some credit. Still, considering the number of convictions in comparison to the number of suspects, and the ease with which many of those convicted escaped serious punishment, there can be little disagreement with Douglas’ alternative assessment that “the German legal system amassed a pitifully thin record” in addressing the crimes of the Nazi era.71 This record did not improve in a manner

64 Weinke, ‘West Germany’, 47 65 Marouf Hasian, ‘Vectors of traumatic memories and mass-mediated representations of the ‘last’ Nazi trial of John Demjanjuk.’ Contemporary Justice Review 17, no.4 (2014): 443 66 Fulbrook, Reckonings, 308 67 Fulbrook, Reckonings, 333 68 Buttner, ‘Epilogue’ 54-5 69 Bazyler, Holocaust, 111 70 Bazyler, Holocaust, 152 71 Douglas, The Right, 10 15

commensurate to that in which Vergangenheitsbewältigung did in the wake of the Historikerstreit and German reunification, as the law remained adherent to precedent. Fulbrook noted that while the Nazi past took an increasingly prominent position in German society and collective memory, the legal precedents and approaches to Nazi crimes that prevented effective prosecution of the Holocaust in Germany “had been instituted early on and were not easily overcome”.72

Memorial success; legal failure

There was, therefore, in this period a striking dichotomy between what is widely considered a successful societal reckoning with the Holocaust in Germany, one considered a positive example for other post-genocidal nations, and what is widely considered an overwhelmingly inadequate legal redress to the genocide, one even intentionally stunted by the German judiciary. This dichotomy begged the question of how a society that failed to provide legal justice for the victims of a genocide, and punishment for its perpetrators, could be seriously considered to have successfully come to terms with the genocide, and to be a “poster boy for national self-reckoning”, to return to Douglas’ phrase.

Weinke has argued provocatively that the “relatively meagre substantive results” of German Nazi trials in fact contributed to the successes of Vergangenheitsbewältigung: the judicial confrontations of Nazi trials and their controversial acquittals served as catalysts for societal debate in Germany.73 Canadian historian Rebecca Wittman has echoed this view, suggesting that the very failures of legal trials helped stimulate successive generations of Germans to be at the forefront of dealing with the guilt of their nation’s past.74 While the conviction of a small number of particularly horrific Nazi murderers may have “functioned as alibis for the remainder of German society”, as Pendas argued,75 as German society increasingly came to terms with the Holocaust and far larger numbers of Germans and other Europeans came to be generally considered as responsible, these alibis wore thin. It came to be widely recognized that the German legal system had failed in its duty to address the crimes of the Nazi era. The rough consensus that the German judiciary failed the victims of the Holocaust, and the regret this caused to a German society that otherwise considered itself successful in coming to terms with the Holocaust, was the social and legal context for the Munich Demjanjuk trial. There had emerged an “increasing determination among a younger generation of Germans to see

72 Fulbrook, Reckonings, 258 73 Weinke, ‘West Germany’, 29 74 Jennifer Clibbon, ‘A front row seat at Demjanjuk’s Nazi war crimes trial’. CBC, December 21, 2009 75 Weinke, ‘West Germany’, 57 16

justice done”, even though this justice came too late for the overwhelming majority of perpetrators and survivors of the Holocaust.76

76 Fulbrook, Reckonings, 336 17

Chapter 2: A brief biography of John Demjanjuk

Ivan Mykolaiovych Demjanjuk was born on April 3rd, 1920 in the village of Dubovi Makharyntsi in the west of Soviet Ukraine. He joined the local communist youth organisation as a teenager and in 1941 was drafted into the Red Army, and was subsequently captured by German forces in May 1942 in Eastern Crimea and initially held at a camp for Soviet prisoners of war.77 He was either chosen, or volunteered, to be sent to the Trawniki concentration camp to be trained as a member of the auxiliary SS personnel, who themselves became known as the ‘Trawniki’; he is listed as one of 129 Trawniki men who subsequently served at the Sobibor death camp.78 According to his identity papers issued at Trawniki, which would play such a large role in the two trials that would come to define his later life, Demjanjuk was sent to Sobibor on March 27th, 1943.79

What exactly Demjanjuk’s duties were at Sobibor has proved to be difficult to ascertain beyond doubt. Ignat Danilchenko, a fellow Trawniki, testified to Soviet prosecutors in 1979 that Demjanjuk “like all guards at the camp, participated in the mass killing of Jews”, but also that he was a particularly “experienced and efficient guard” who was frequently granted leave as a reward for the thoroughness with which he carried out his orders.80 Demjanjuk’s account of how he spent the years of 1942-1945 altered throughout his legal travails; the version he related to his supporter Anton Schleha during the final months of his life was that he was sent to join the Russian Liberation Army at Graz, but managed to escape and worked on a farm until American troops arrived, whereupon he worked for the Americans driving a truck for the rest of the war.81 Douglas notes that while “no-one familiar with the case can seriously doubt that Demjanjuk served as a camp guard” at Sobibor, no corroborating evidence has ever been provided to establish that Demjanjuk was a particularly cruel or enthusiastic member of the Trawniki there.82

Demjanjuk spent time in a displaced persons camp in Germany after the war and married Vera, a fellow Ukrainian whom he met there. They emigrated in 1952 with their daughter Lydia to the US, informing immigration officials that he had spent the entirety of the war as a prisoner.83 The family settled in Cleveland, Ohio, and Ivan Demjanjuk received his US citizenship in 1958, at which point he

77 Douglas, The Right, 225 78 Chris Webb, The Sobibor Death Camp: History, Biographies, Remembrance (Stuttgart : ibidem-Verlag, 2017), 389 79 Jules Schelvis, Sobibor: A History of a Nazi Death Camp. (Oxford: Berg, 2007), 35 80 Webb, Sobibor, 370 81 Anton Schleha, The English Kobzar (Self-published, available on Amazon.com, 2015), ch2 and ch7 82 Douglas, The Right, 15 83 Bazyler, Holocaust, 148 18

formally anglicised his first name to John.84 John Demjanjuk worked as a mechanic in a Ford automobile factory and he and Vera had two more children.85 It was not until the mid-1970s that Demjanjuk’s wartime past began to catch up to him, when Michael Hanusiak, the Ukrainian-American editor of the Ukrainian News in New York, who was a loyal Soviet supporter and made frequent visits to Kiev, was supplied on one such trip with a list of seventy purported Ukrainian war criminals who were living in the United States. Part of the motivation of the Soviet leadership in Moscow for supplying this list was to discredit Ukrainian nationalists by linking this movement with historic Nazi collaboration.86

Hanusiak in turn supplied the list to Jacob Javits, a Republican senator for New York, in October 1975, and in 1977 the US Justice Department began proceedings to denaturalise and deport Demjanjuk on the grounds that he had lied on his immigration application form about his wartime activities.87 At this time interest in Nazi war crimes was growing in the US, and concern was increasing that many Nazi war criminals were resident in the country; matching these concerns, an Office for Special Investigations (OSI) was set up in the Justice Department.88 Demjanjuk was not thought to be an ordinary Nazi camp guard, however; several survivors of the Treblinka death camp, upon being shown Demjanjuk’s Trawniki ID card that had been supplied by Soviet authorities, identified him as ‘Ivan Grozny’, or ‘Ivan the Terrible’, a notoriously sadistic camp guard at Treblinka, who had been mentioned at the 1963 trial of high-ranking Nazi official Adolf Eichmann.89 Demjanjuk was now of utmost interest to the OSI and to the Israelis who were determined to put him on trial in Jerusalem.

In 1981 Demjanjuk had his US citizenship revoked. Israel submitted a formal extradition request in 1983, and after a failed appeal, he was deported there in February 1986. He was the second and final individual to be tried in Israel under the Nazi and Nazi Collaborators Law, after Eichmann.90 The trial focused largely on the question of his identity, as his Trawniki ID card stated that he had been dispatched to serve at Sobibor but made no mention of Treblinka,91 where ‘Ivan the Terrible’ was known to have committed his crimes. Like the Eichmann trial over twenty years previously, the Jerusalem Demjanjuk trial gave Holocaust survivors the opportunity to describe their suffering “in the

84 John Caniglia, ‘‘Seven Hills’ John Demjanjuk, convicted Nazi guard, dies in Bavaria at 91’. Cleveland.com, March 17, 2012 85 Bazyler, Holocaust, 148-9 86 Douglas, The Right, 30 87 Bazyler, Holocaust, 148-9 88 Fulbrook, Reckonings, 347 89 Douglas, The Right, 38 90 Bazyler, Holocaust, 148/9 91 Douglas, The Right, 53 19

interests of broader Holocaust education”, as Fulbrook described.92 The witnesses all testified that Demjanjuk was indeed ‘Ivan the Terrible’, and in 1988 he was found guilty and sentenced to death.93

As his case went to appeal in the Supreme Court of Israel, however, Demjanjuk was saved by the opening of Soviet archives in the wake of the collapse of the Soviet Union. These archives revealed that a fellow Ukrainian who bore a fair resemblance to Demjanjuk, Ivan Marchenko, had worked as a camp guard at Treblinka, and it soon became apparent that Marchenko was the real ‘Ivan Grozny’.94 Demjanjuk was acquitted in the Supreme Court in 1993, and the Israelis were left with the burden of a stateless, and very much unwanted, man on their hands. Ukraine was willing to take him in, as then- President Leonid Kravchuk assured that he would be granted a visa.95 At this point American authorities intervened, however, and he was returned to the USA in 1993, with his citizenship eventually being restored in 1998.96 The protracted deportation, trial and eventual exoneration of Demjanjuk was highly embarrassing for both the Israeli and American authorities, a “scandal that shook survivors’ confidence in justice and in the international community’s will to prosecute and punish the crimes committed by the Nazis”.97 The reputation of the OSI suffered the most, as in November 1993 a Sixth Circuit Court of Appeal ruled that OSI prosecutors had acted improperly during Demjanjuk’s denaturalisation trial by withholding evidence from the defence.98 Ever since, the OSI was determined to make amends, especially given its certainty in the validity of the Trawniki ID card in Demjanjuk’s name, which had been declared authentic by experts in his first denaturalisation trial.99

The OSI began a second round of investigations into Demjanuk’s past, again under the accusation that he had not revealed the truth of his wartime activities when entering the US in 1952. New denaturalisation proceedings were filed in 1999, alleging that Demjanjuk had served as a Trawniki at three camps: Sobibor, Majdanek and Flossenbürg. At the second denaturalisation trial beginning in May 2001, the OSI provided six further wartime documents which made reference to Demjanjuk; these included a roster of eighty four men to be transferred from Trawniki to Sobibor, dated March 26, 1943, in which Demjanjuk was listed with his place and date of birth.100 In February 2002 an Ohio District Judge concluded that Demjanjuk had indeed served at Sobibor from March 1943 as a Trawniki camp guard, according to the existing documentation, and was therefore incriminated in the deaths of

92 Fulbrook, Reckonings, 347 93 Bazyler , Holocaust, 148-9 94 Fulbrook, Reckonings, 348 95 ‘Ukraine Willing to Admit Demjanjuk, Leader Says’. New York Times, July 31, 1993 96 Bazyler, Holocaust, 148/9 97 Dominik J. Schaller, ‘From the editor: the Demjanjuk case – final justice?’ Journal of Genocide Research 11, no.2-3 (2009), 195 98 Douglas, The Right, 116 99 Douglas, The Right, 53 100 Rashke, Useful, 498 20

thousands of Jews.101 Demjanjuk’s subsequent appeal was dismissed in 2004 and he was again stripped of his citizenship -- the only individual in American history to lose their citizenship twice.102

In December 2005 chief immigration judge Michael J. Creppy ordered that Demjanjuk be deported to Ukraine.103 Ukraine was no longer willing to take him, however, now considering that his presence would draw unwanted attention from both internal nationalist agitators and disapproving international observers.104 Polish prosecutors were not convinced that they would be able to convict Demjanjuk, and therefore declined to take him in 2007.105 Germany had historically refused to accept denaturalised American citizens, partly because of the unlikeliness of securing their conviction in German courts; if Germany could not convict Nazi perpetrators and collaborators, it certainly did not wish to be seen as providing them with refuge.106 There was therefore some surprise when it was announced in June 2008 that the country would seek Demjanjuk’s extradition.107 The fact that as recently as 2004 Germany had declined to extradite two denaturalised former camp guards from the USA helps to explain this surprise.108

The efforts of survivor organisations, particularly the Simon Wiesenthal Center, in applying public pressure on German authorities have been credited in helping to ensure that a second Demjanjuk trial took place in Germany.109 The pressure that the German government was under from its own prosecutors to accept the case was also influential in bringing about the deportation, which had been resisted by the government for several months.110 The Ludwigsburg Central Office had been slowly building a case for a Demjanjuk trial since 2006, and the investigators’ confidence had grown that a conviction could yet be secured. The prosecutors planned to argue that since Sobibor functioned purely as a camp for killing, Demjanjuk’s work there necessarily consisted of assisting in murders.111 It was therefore hoped that evidence of specific crimes would not be needed to convict him, and that decades of German legal precedent could be overturned. It is likely that the combination of Demjanjuk’s notoriety as a result of his trials in Israel and the prosecutors’ new-found confidence that a conviction could be secured convinced the German government to approve the extradition.

101 Schelvis, Sobibor, 35 102 Douglas, The Right, 2 103 Schelvis, Sobibor, 42 104 Douglas, The Right, 134 105 ‘What’s new in law and case law across the world’ International Review of the Red Cross vol.93(883) (2011), 867 106 Douglas, The Right, 135 107 Lawrence Douglas, ‘Convicting the Cog: The Munich Trial of John Demjanjuk’ in Rethinking Holocaust Justice: Essays Across Disciplines, ed. Norman J.W. Goda ,(New York: Berghahn Books, 2018), 189 108 Douglas, The Right, 135 109 Schaller, ‘From the editor’, 195 110 Rashke, Useful, 510 111 Douglas, The Right, 157 21

Demjanjuk was subsequently charged as an accomplice to murder in 27,900 counts, and after all appeals were exhausted, he was deported to Germany in May 2009.

The trial began in Munich on November 30th of that year.112 It was presided over by Judge Ralph Alt, the chief prosecutor was Hans-Joachim Lutz, and Demjanjuk was defended by Ulrich Busch. The trial received massive media attention worldwide. The ninety days of trial proceedings took until May 2011 to finally complete, a month after the defendant’s 91st birthday, largely because the trial was repeatedly help up on the grounds of Demjanjuk’s poor health.113 Unlike the Jerusalem trial, the Munich trial did not rely on witness testimony; the 1979 Danilchenko testimony was the only eye- witness account of Demjanjuk’s presence at Sobibor admitted as evidence.114 Instead, the prosecution largely used expert historical testimony and a kind of deductive logic to establish the defendant’s guilt. A key piece of documentary evidence used against Demjanjuk was again his Trawniki ID card; while his defence claimed that the ID card was a forgery, and produced an FBI report from the time of his first denaturalisation trial that expressed doubts to that effect, several experts testified as to its authenticity.115

On May 12th, 2011 Demjanjuk was convicted on all counts and sentenced to five years in prison; however, he was released to a nursing home pending his appeal. He died there on March 17th, 2012, still awaiting his appeal; he therefore remained technically innocent under German law.116 He was survived by his wife and three children. In January 2019 the European Court of Human Rights rejected the claim by Demjanjuk’s widow and son that they should be reimbursed for his legal expenses of the Munich trial, and their argument that the court had deprived Demjanjuk of a fair trial and had failed to presume innocence.117 The case has therefore continued, in a form, for years after the trial’s conclusion. In January 2020, news came of previously unknown photographs taken by Sobibor’s deputy commandant, which seemingly depicted Demjanjuk inside the death camp.118

112 Johannes Houwink ten Cate, ‘Looking Back on the Demjanjuk Trial in Munich’ in Jewish Political Studies Review vol.116 (2012) 113 Fulbrook, Reckonings, 348 114 Houwink ten Cate, ‘Looking Back’ 115 David Cohen, ‘The Passage of Time, the Vagaries of Memory, and Reaching Judgement in Mass Atrocity Cases’ in Old Evidence and Core International Crimes, ed. by Marten Bergsmo and Wui Ling Cheah, (Beijing: Turkel Opsahl, 2012), 13 116 Fulbrook, Reckonings, 349 117 ‘Germany does not have to cover ex-Nazi guard legal fees, court rules’, Deutsche Welle, January 24, 2019 118 Madeline Chambers, ‘Newly discovered photos of Nazi death camp may show guard Demjanjuk: historians’, Reuters, January 28, 2020 22

Chapter 3: The legally significant aspects of the trial

It was established in Chapter 1 that the history of German prosecutions of Nazi crimes has been largely judged as a failure, and that this jars with what is perceived as a largely successful coming- to-terms with the Holocaust. Given the surprise that accompanied the German decision to seek Demjanjuk’s extradition, and Demjanjuk’s already established notoriety, the trial was always likely to be high-profile and widely debated, and whatever the outcome, it would be combed over by commentators for historical and legal significance. It may not have been expected, however, just how unique and ground-breaking the trial would become in terms of the legal precedents. This chapter shall explore five legally significant aspects of the trial’s processes: its hybrid domestic and international nature; the novel prosecutorial argument; the treatment of the question of putative necessity; the verdict; and, finally, its lasting impact in precipitating successive trials.

The hybrid domestic and international nature of the trial

The trial had an unusual hybrid nature, in terms of being a domestic trial under German international law, that was obliged to take on an international aspect. There was initially some debate over whether Demjanjuk could in fact be tried under German law. As he was a Ukrainian-American, who by the time of the trial was persona non grata in both these countries and was therefore stateless to some extent, and who had committed crimes for which he would be charged in Poland, the German prosecutors were obliged to demonstrate why Demjanjuk should face a German court of law. The prosecution argued that as Demjanjuk had served under Waffen-SS command he had functioned at Sobibor as a German Amtsträger – someone holding an official position in civil service – and that his actions at Sobibor therefore were under the jurisdiction of German law, an argument the court accepted.119

The Munich trial was therefore that of a non-German being tried for the murder of non- Germans outside of Germany, by a German domestic court, one of the very few times this had occurred in the decades of prosecutions of Nazi crimes. The case played out before an international audience in a manner in which domestic trials very rarely do. In his review of the trial Johannes Houwink ten Cate, who provided testimony in Munich, commented that a judge in such an international and domestic hybrid trial of historical crimes is obliged to give a description of the historical context of the crimes in a way that does not occur at purely domestic trials.120 By its very nature, therefore, the Munich trial

119 Douglas, The Right, 158 120 Houwink ten Cate, ‘Looking Back’ 23

was something more than a domestic prosecution for accomplice to murder, and both the legal processes applied during the trial and the reactions to it were extraordinary.

A new legal framework

As discussed in Chapter 1, prosecutions of Nazi crimes in Germany have historically been of specific crimes of murder or accomplice to murder, with evidence of an individual’s role as a member of death camp personnel not considered as sufficient evidence to convict. Concrete evidence of specific acts of murder was required, and prosecutors typically focussed on so-called Excesstäter. The historic difficulty in securing convictions of death camp personnel in Germany led many observers to be pessimistic as to the outcome of Demjanjuk’s trial, and even confused as to why it was being held. Christiaan Rüter, a Dutch professor of criminal law, before the trial found it “entirely bewildering how anyone familiar with the German legal system could expect a conviction of Demjanjuk with this evidence”.121 Rüter’s colleague Dick de Mildt recently expressed to the author his surprise that the trial ever took place,122 and other observers who were highly familiar with the German case law predicted that the Munich trial would not result in a conviction.123 Given that, as Polish historian Marek Bem noted in his history of the Sobibor death camp, it was “really hard to provide any solid evidence that [Demjanjuk] was guilty of specific crimes”,124 and the long history of Nazi trials ending in acquittal under such circumstances, these observers could be forgiven for expecting an acquittal. They did not reckon, however, with the entirely novel legal framework that would be used by the prosecution and accepted by the judges, one that that Kurt Schrimm, head of the Ludwigsburg Central Office, subsequently described to the German newspaper Der Spiegel as a new interpretation of the law.125

The essence of the argument used by the prosecution was that of a piece of deductive reasoning, or a syllogism, as described by Douglas; “All Sobibor guards participated in the killing process. Demjanjuk was a Sobibor guard. Therefore Demjanjuk participated in the killing process”.126 The conclusion was necessarily true if the two premises were true. The second premise – that Demjanjuk had been a guard at Sobibor – was chiefly established by documentary evidence, with the help of expert witnesses to assess the authenticity of the documents, chiefly the Trawniki ID card, as well a list of Trawniki men sent to Sobibor in March 1943.127 The first premise was harder to establish. The prosecution relied on the expert testimony of historians to argue that Sobibor was a camp whose

121 Douglas, The Right, 160 122 Dick de Mildt, Interview with Author. November 11, 2019 123 Douglas, The Right, 13 124 Marek Bem, Sobibor Extermination Camp 1942-1943, (Amsterdam: Stichting Sobibor, 2015), 321 125 ‘Germany criticized for late push on war criminals’. Der Spiegel, May 13, 2011 126 Douglas, The Right, 218 127 Houwink ten Cate, ‘Looking Back’ 24

sole purpose was the extermination of those victims brought to it, and therefore that all camp personnel were involved in this process. Thomas Weigend, professor of criminal law at the University of Cologne, wrote that establishing that Sobibor was “designed exclusively for extermination” was essential to the prosecution’s success, for otherwise a conviction could have had the consequence of over-attributing collective guilt to anyone involved in a criminal enterprise.128

In this role German Holocaust historian Dieter Pohl would prove to be crucial to the prosecution’s case. He testified that all guards at Sobibor were generalists, not specialists, and therefore any guard who served at Sobibor would necessarily have taken part in the killing process,129 a view echoed by the testimony of Sobibor survivors.130 The judges accepted the prosecution’s syllogism, which, although it seemed simple and self-evident to some observers, was ground-breaking in the context of German case law, as it involved none of the precise investigation of intentions and base motives so central to earlier German prosecutions.131 The verdict simply stated that “The defendant supported the realization of the main act by his active contribution”,132 and that Demjanjuk was therefore guilty. Judge Alt even went further and ruled that “the defendant keenly participated in the mass killing of Jews”.133

It was the first time that a German court convicted a Nazi war criminal without documentary or witness evidence that he had killed anyone;134 it might be added that such a conviction on such grounds would be exceptional in any modern legal system. The key importance of historical testimony in securing Demjanjuk’s conviction would later lead Douglas to describe the process as “a trial by history”,135 and it is certainly true that historians played a crucial role in negating the need for evidence of Demjanjuk’s role in specific instances of murder. The prosecution therefore benefitted from the decades of historical study of the Holocaust. The bold legal framework employed by the prosecution allowed documentary evidence and expert historical testimony to work in the courtroom to create what was accepted by the judges as a watertight argument in support of Demjanjuk’s conviction. The

128 Thomas Weigend, ‘Problems of Attribution in International Criminal Law.’ Journal of International Criminal Justice 12, no.2 (2014), 262 129 Douglas, The Right, 219 130 Houwink ten Cate, ‘Looking Back’ 2012 131 Fulbrook, Reckonings, 348 132 David Kohout, ‘Statutory Limitation of Crimes Under International Law: Lessons Taken from the Prosecution of Nazi Criminals in Germany after 1945 and the New “Demjanjuk Case Law”’ International Comparative Jurisprudence 3, no.1 (2017), 49 133 Bem, Sobibor, 320 134 Rashke, Useful Enemies, x 135 Lawrence Douglas, ‘The Wages of Justice: The Holocaust, Murder and Crimes Against Humanity’, Ina Levine Annual Lecture, March 13 2014 25

unprecedented role of historical testimony in securing this conviction would lead to both praise and criticism of the trial.

Putative Necessity

As discussed earlier, the defence of putative necessity had previously been successful in many German trials of Nazi crimes. While German prosecutions of Trawniki men were not entirely without precedent, as the Trawniki-trained Franz Swidersky was convicted in Dusseldorf in 1971,136 the perceived strength of the putative necessity defence generally had made German prosecutors and the Ludwigsburg Central Office decline to investigate Trawniki men, suspects who could use the defence more convincingly than their German counterparts.137 The criticism of Demjanjuk’s 1988 conviction by Helge Grabitz, then the senior public prosecutor in Hamburg, was indicative of judicial support for the putative necessity defence; she wrote that the Trawniki’s belief that a refusal to obey orders would be punished by death meant that Demjanjuk and others could not be held legally responsible for their actions.138 The Munich court was not prepared to accept this precedent, however, without questioning whether Demjanjuk had truly acted out of genuine fear for his own life.

The prosecution argued that as a Ukrainian, Demjanjuk received better treatment than Soviet POWs of other nationalities; it was also claimed that by 1942 the treatment of Soviet POWs in general had improved, and that Demjanjuk could not have expected to have been killed if he did not join the Trawniki, but rather that he would have been committed to forced labour.139 Peter Black, a senior historian at the United States Holocaust Memoral Museum, testified that Trawniki such as Demjanjuk were paid, had days off, paid home leave, and free medical care, and therefore categorically ceased to be POWs once they entered service.140

Crucially, the court accepted the argument that once at Sobibor, Demjanjuk could have tried to escape to join partisan groups in nearby forests;141 two Trawniki who had successfully escaped the camp were mentioned in the judges’ verdict.142 The court heard that at least twenty nine of the 388 Trawniki who served at Sobibor during the camp’s existence tried to escape.143 Black later estimated

136 Peter Black, ‘Police auxiliaries for Operation Reinhard: shedding light on the Trawniki Training Camp through documents from behind the Iron Curtain’ in Secret Intelligence and the Holocaust, ed. David Bankier (Jerusalem: Yad Vashem, 2006), 362 137 Douglas, The Right, 224 138 Houwink ten Cate, ‘Looking Back’, 2012 139 Douglas, The Right, 225 140 Douglas, ‘Convicting’, 200 141 Kohout, ‘Statutory’, 49 142 Houwink ten Cate, ‘Looking Back’, 2012 143 Rashke, Useful Enemies, 525 26

that of the roughly 5000 collaborators trained at Trawniki, around a fifth of them deserted their posts at some stage.144

Judge Alt concluded that for Demjanjuk “escape with a chance of survival was possible”,145 and that those who fled did not expect to be killed if captured. Demjanjuk, it was decided, had therefore chosen to remain at Sobibor; survivors of the camp argued at the time of the trial that he did so because life at the camp was safer and more comfortable than life as a partisan in the forest.146 The court therefore accepted the prosecution’s argument that Demjanjuk had a moral and legal obligation to at least try to escape Sobibor and his murderous duties there, and that his failure to do so constituted a choice to accept his place in the camp’s operations and to assist with murder.147 The fact that Trawniki men outnumbered members of the SS at Sobibor by at least five to one was seen as a telling statistic.148 Demjanjuk’s defence in this regard, as constructed by his lawyer Ulrich Busch, was ineffective to these arguments, as it did not acknowledge that Demjanjuk had served at Sobibor at all; only that if he had been, and had taken part in gassings, it only would have been because he was forced to. Demjanjuk’s refusal to acknowledge his presence at Sobibor likely facilitated the court’s rejection of a potential defence of putative necessity, for he could not convincingly claim that he had acted out of fear without that acknowledgement.149

The rejection of putative necessity at the Munich trial, in addition to the syllogism used to establish that his function necessitated his guilt, was a second creative legal argument that relied on expert historical testimony to reach a conclusion that went against the established precedent in Nazi trials, including that of the 1965-66 trial of the SS men of Sobibor, which acquitted five men on the grounds of putative necessity.150 Demjanjuk in fact became the first person, be it German or Trawniki, to be found guilty in a court for crimes at Sobibor, and his case was also the only example in the history of Nazi war crimes prosecutions of a conviction made partly on the basis of “failing to flee from an extermination camp”.151

144 Douglas, ‘The Wages of Justice’ 145 Bronwyn Leebaw, ‘Justice and the faithless: The demand for disobedience in international criminal law’ European Journal of International Relations 24, no.2, (2018), 359 146 Rashke, Useful Enemies, 525 147 Kohout, ‘Statutory’, 49 148 Douglas, The Right, 226 149 Houwink ten Cate, ‘Looking Back’, 2012 150 Buttner, ‘Epilogue’ 56 151 Weinke, ‘West Germany’, 54-55 27

Eyewitness testimony – the role of the Nebenkläger

Throughout the decades of German trials of Nazi crimes, the prosecutions had relied heavily on eyewitness testimony from survivors of the death camps.152 Demjanjuk’s trial in Jerusalem had also used the testimony of eye witnesses to identify him as ‘Ivan the Terrible’.153 Stephen Landsman, a professor of law at De Paul University, argued that the convention of including “victim-witnesses” in Holocaust trial proceedings, as established by the Eichmann trial, led to slower trials that were more vulnerable to various challenges of criminal law, and believed that the “Demjanjuk debacle” in Jerusalem showed the danger of relying on victim eyewitnesses in a trial of a low-level perpetrator of mass crimes.154 Douglas has agreed, noting that although the desire to include and record the statements of survivors is laudable in pedagogical terms, for securing a strong conviction it may be risky to use a criminal trial “to serve the interests of memory”, as the Jerusalem trial had done.155

The court in Munich was determined to avoid a repetition of that debacle, and despite the existence of two Sobibor survivors who said that they could identify Demjanjuk as a Trawniki who had served at the camp, the prosecutors decided not to use them. Although the conviction was therefore secured solely on the basis of documentary evidence and the testimony of historical experts, the views and testimony of those affected by the Sobibor death camp were not entirely excluded from the trial, but were represented by the Nebenkläger (‘joint plaintiffs’), who unlike the witnesses in the first Demjanjuk trial, were largely second-generation victims of the Holocaust – many of them orphaned by the murders committed at Sobibor. Nebenkläger do not appear in a German court as witnesses, but rather to provide victim impact statements. In a poorly considered move, the defence challenged the authenticity of the Nebenkläger, arguing that they could not prove that they were first-degree relatives of those who had been murdered at Sobibor in the period in question. That was when the lawyer representing them, Cornelius Nestler, asked for the court to permit the Nebenkläger to appear as witnesses to testify to their authenticity, and they were actually the first witnesses to appear before the court during the proceedings.156

152 Omar Bartov, ‘Genocide and the Holocaust: Arguments over History and Politics’ in Lessons and Legacies XI: Expanding Perspectives on the Holocaust in a Changing World, ed. Hilary Earl and Karl A Schluenes (Illinois: Northwestern University Press, 2014), 10 153 Bazyler, Holocaust, 148-9 154 Stephen Landsman, ‘The Eichmann Case and the Invention of the Witness-Driven Atrocity Trial’ Columbia Journal of Transnational Law 51, no.1 (2012), 104 155 Douglas, ‘Wages of Justice’ 156 Douglas, The Right, 195 28

The role of the Nebenkläger in Munich arguably helped to give the trial separate aspects with different ambitions; while the conviction was based solely on documents and historical facts, without reliance on eyewitness testimony, time and space were set aside for the interests of victims, the memorialisation of lived experience, and pedagogical aims. This allowed for something approaching the ambition of the Eichmann trial, which Landsman described as aiming to “tell the vast story of the Holocaust”,157 without endangering the outcome as the first Demjanjuk trial did.

The verdict and Demjanjuk’s death

It was unfortunate, but undeniably significant that John Demjanjuk died before his appeal could be heard. Upon conviction the court had ruled that he should be moved to a nursing home and not kept in prison, as after two years on remand it would be a “particular inconvenience” to him if were incarcerated longer.158 Demjanjuk died 10 months later, on 17th March 2012, and there were accusations from his supporters such as the Ukrainian-British author Anton Schleha, who wrote about his frequent visits to Demjanjuk in the Bavarian nursing home where he was living, that the German authorities were deliberately delaying the appeal process in the hope that it would not have to go ahead.159 Under German criminal law, Demjanjuk’s conviction for accessory to murder therefore did not take legal effect,160 and his lawyer Ulrich Busch was quick to state that “there is no final verdict about the question of being guilty or innocent possible. That means John Demjanjuk died March 17th 2012, an innocent man”.161 Demjanjuk’s legal saga, some thirty five years after his first deportation proceedings were started, was not brought to a clear end.

The fact that subsequent convictions of camp guards have been made under similar legal frameworks, and have been upheld on appeal, suggests that Demjanjuk’s conviction would also have been upheld. It would certainly have been a political and legal fiasco for him to have been acquitted. That outcome was not totally out of the question, however, as the defence of putative necessity may have been mounted more coherently second time around. If the conviction had been upheld, the appeal would also have served the important purpose of further raising the question of how remiss the German authorities had been earlier in declining to prosecute Trawniki men.162 It is therefore legally significant that Demjanjuk did not have the opportunity to appeal his conviction, and this should not be forgotten in examining the historical and legal legacy of the trial.

157 Landsman, ‘Eichmann’, 69 158 Bem, Sobibor, 321 159 Schleha, Kobzar, author’s note 160 Douglas, The Right, 257 161 Schleha, Kobzar,author’s note 162 Houwink ten Cate, ‘Looking Back’ 29

Further prosecutions

In the wake of Demjanjuk’s conviction many commentators believed that it represented the last high-profile Holocaust trial the world would see. Weinke wrote that “there is much reason to believe that this will be the last trial of its kind in the German Federal Republic”,163 and Douglas labelled the proceedings as the ‘Last Great Nazi War Crimes Trial’ in the title of his book, adding that it would be “the last Holocaust trial to galvanize international attention”.164 Such commentary proved to be misguided. In fact, the Munich Demjanjuk trial heralded a new era in Holocaust prosecution, as the precedents set in this extraordinary trial were brought to bear in several other high-profile trials of ageing defendants, which too received international attention. German prosecutors, armed with the new precedent for establishing criminal liability, went “scurrying back to their file cabinets” to find other cases in which a conviction might now be possible,165 as “a new late chapter in the prosecution of Nazi criminals” began.166 The opportunity to secure convictions that would previously have been impossible was noted by organisations such as the Simon Wiesenthal Center, which launched ‘Operation Last Chance II’ in 2013, offering financial incentives of up to €25,000 for information that could lead to the prosecution and conviction of further individuals.167

High-profile trials in Germany since the Munich trial have included that of Oskar Gröning, a former SS member, whose conviction for accessory to murder on 300,000 counts was upheld on appeal by Germany’s Federal Constitutional Court in 2017,168 and Reinhold Hanning, also convicted under the same legal framework as used to convict Demjanjuk.169 Others such as Ernst Tremmel and Hubert Zafke died before their trials began, or were too unwell for proceedings to continue. All four of these men were Germans who worked at Auschwitz-Birkenau.170 In August 2019 German prosecutors announced that a 92-year-old German accused of being an SS guard at the Stutthof concentration camp would go on trial later in the year; Reuters referenced the Demjanjuk case in citing a “landmark conviction in 2011” as instrumental in bringing about this new trial.171

Conclusion

163 Weinke, ‘West Germany’ 25 164 Douglas, The Right, 1 165 Rashke, Useful Enemies, x 166 Kohout, ‘Statutory’, 48 167 Kirsten Goetze, ‘Review of Operation Last Chance: Im Fadenkreuz des Nazi-Jägers by Efraim Zuroff and Stephanie Wills.’ Jewish Political Studies Review 25, no.3/4 (2013), 129 168 Fulbrook, Reckonings, 350 169 Bazyler, Holocaust, 150 170 Fulbrook, Reckonings, 352 171 Madeline Chambers, ‘Germany to put 92-year old man on trial for Nazi crimes’. Reuters, August 8, 2019 30

The Munich Demjanjuk trial broke with established legal precedent in German Holocaust trials in two key ways: by considering evidence of an individual’s presence in a working capacity at an extermination camp as sufficient to convict for accessory to murder, without evidence of specific crimes, and by scrutinising the putative necessity defence more than ever and concluding that a man in Demjanjuk’s position at Sobibor had a legal obligation to attempt to desert. The first of these new precedents emphasised the functional nature of guilt in a collective context; while the second emphasised the individual responsibility to do everything possible to avoid being in such a context.

Demjanjuk’s death before his case went to appeal meant that he technically died as an innocent man; but it also meant that these new legal precedents were subsequently established in the legal record before they had been heard by Federal Constitutional Court. These precedents subsequently emboldened a new era in Holocaust prosecution in the wake of the Munich trial, and have since been used to secure successful convictions, whereby they have subsequently been upheld in the highest court.

Two other legally noteworthy aspects of the trial were its hybridisation of domestic and international formats, and the role played by the joint plaintiffs in providing an element of Holocaust memorialisation and education to the trial through their testimony, even though this testimony was not used to secure the conviction. The trial was therefore a more legally significant and noteworthy example of Holocaust prosecution than could ever have been expected.

The trial was always likely to engender strong reactions, both domestically and internationally, and across the political spectrum. The acceptance of novel legal arguments, and the unique aspects of the processes in Munich, coupled with Demjanjuk’s death before appeal, meant that reaction to the trial and its verdict were even more vociferous and polarised than could have been predicted. Chapter 4 shall explore public, media and academic reactions to the trial with the aim of establishing some significant aspects of the trial’s discussion and memorialisation.

31

Chapter 4: Media and Academic Reaction to the Trial

Media and scholarly coverage of the trial was extensive from the outset. To a large extent reactions played out along pre-existing political and ideological lines, as a social semiotics analysis of media reaction to the trial noted that media outlets used the questions of Demjanjuk’s disputed guilt and the political significance of the trial “to position themselves within the political spectrum”.172 It was, however, by no means only Ukrainian or far-right wing commentators that portrayed Demjanjuk as being unfairly treated, or who criticised the trial processes. The trial encouraged a fresh consideration of both the German record of Holocaust prosecutions, and the history of Vergangenheitsbewältigung, meaning that reactions to the trial would be placed in the context of these deep-seated notions of failure and success. This chapter shall group and consider reactions to the trial under four main subheadings: the defendant’s age and infirmity; the political significance and motivation of the trial; Demjanjuk’s own alleged victimhood during the Second World War; and lastly, Demjanjuk’s alleged victimisation by the trial in Munich. The chapter shall use media, public and academic reactions to build a comprehensive picture of the range of arguments and discussion that the trial produced.

Age and Infirmity

Given that John Demjanjuk was eighty-nine years old at the start of the trial, it was to be expected that some reactions to the trial would focus on his age, and his apparent infirmity which held up the trial proceedings. In Germany, there was some negative reaction to the court’s prosecution of an old man; before the trial German newspapers had begun to refer to the defendant as “Ivan the Recumbent” or “Ivan the Corpse”,173 and during the proceedings German legal scholar Susanne Beck wrote that the “the courts seem to have adopted a rather stern position” towards the defendant. She hoped that an acknowledgement of his age would inform the sentencing and choice of institution in which he would be imprisoned.174 Indeed, the court did take these factors into account at the trial’s conclusion. By the time of his conviction, however, the popular German media was generally not

172 Pentzold et al, ‘Reconstructing, 34 173 Hasian, ‘Vectors’, 435 174 Susanne Beck, ‘Does Age Prevent Punishment - The Struggles of the German Juridical System with Alleged Nazi Criminals: Commentary on the Criminal Proceedings against John Demjanjuk and Heinrich Boere.’ German Law Journal 11, (2010), 348 32

sympathetic to Demjanjuk on account of his age; for example, the tabloid Bild declared that “It does not matter that he is old and sick” in advocating “no mercy” for Demjanjuk.175 Beck had already noted that in general German courts do not treat aged defendants any differently from younger ones, and it was therefore by no means out of the ordinary that a man of Demjanjuk’s age would be under criminal prosecution.176

In the international media there were some expressions of surprise and regret that a man as old as Demjanjuk had been convicted of historical crimes; with the criticism coming from a variety of sources and for different reasons. Before the trial began British Holocaust historian David Cesarani asked “what court with an ounce of humanity would send an ailing nonagenarian to jail”.177 After his conviction, the Ukrainian magazine Echo expressed consternation that “the old, feeble Ukrainian Ivan Demjanjuk” had been put through the trauma of a second trial,178 and in the Israeli newspaper Haaretz Ansel Pfeffer expressed regret that money had been spent on prosecuting old men like Demjanjuk, “doddering relics of the Third Reich”, which could have been awarded to Holocaust survivors and their families.179 Elsewhere, the wisdom of prosecuting an old man was later questioned by American scholar Marouf Hasian, who remarked in 2014 that “chasing nonagenarians does not seem to be the best way of helping with consciousness raising”.180 For some critics, therefore, the conviction of such an old man could not contribute to, or would even hinder, important Holocaust-related tasks such as education and reparations.

Other commentators, however, considered it a testament to the court’s merit that Demjanjuk was not excused from prosecution on account of his age. Wolfgang Benz, director of Berlin’s Center for Research on Anti-Semitism, argued before the trial began that the defendant’s age was of no significance; “the issue of dealing with our past will never end, and Demjanjuk is the case for today”.181 During the trial Deutsche Welle reported that the Nebenkläger and other relatives of Sobibor survivors agreed that “it is never too late for justice”, and that they paid tribute to the German justice system for pursuing the case.182 After the trial’s conclusion Michael Scharf, writing in the U.S. based Jewish Daily Forward, argued that the Demjanjuk prosecution sent an important message: that the ability to

175 Stephanie Jungholt, ‘Who Understands our Justice?’ Bild, May 13, 2011 176 Beck, ‘Does Age’, 348 177 David Cesarani, ‘Justice will not be served by this trial, even if he is found guilty’. Independent, December 1, 2009 178 Alexander Gorobets, ‘Who is he, the unknown Ukrainian John Demjanuk?’. Echo, March 24, 2012. 179 Anshel Pfeffer, ‘Small-fry or Mass Murderer? Demjanjuk Took his Secret to the Grave’. Haaretz, March 18, 2012 180 Hasian, ‘Vectors’, 449 181 Toby Axelrod, ‘As Demjanjuk trial nears, prosecutors confident they can convict’. Jewish Telegraph Agency, November 23, 2009 182 Mariana Schroeder, ‘Demjanjuk trial connects victims’ families to the past’. Deutsche Welle, January 21, 2010 33

evade justice for a long time will not preclude an eventual prosecution for crimes of mass atrocity,183 a view reiterated in the Israeli newspaper Haaretz.184 Looking back on the trial, German historian Wulf Kansteiner wrote in 2013 that it was “very satisfying” that other old Nazis were “finally dragged into court” in the wake of the Demjanjuk’s conviction.185 For some observers, indeed, the advanced age of the defendant gave only more reason to prosecute, and to prosecute quickly, so as to secure a historic and symbolically important conviction before it was too late.

In addition to Demanjuk’s age, his apparent ill-health was often discussed. The fact that around a quarter of the trial’s dates were postponed due to the defendant’s complaints of illness,186 and that when Demjanjuk did appear in court it was either in a wheelchair or on a stretcher,187 helped to ensure that. Demjanjuk’s son, John Demjanjuk Jr, described his father as “sick and dying” at the trial’s start in the Ukrainian Weekly, a newspaper of the organised Ukrainian diaspora in North America,188 and this description was taken up in other accounts of the defendant’s health in Ukrainian and Ukrainian diaspora media. The Commission on Human and Civil Rights of the Ukrainian World Congress wrote to the German Chancellor Angela Merkel before the trial began, to argue that given Demjanuk’s poor health, “it would be appropriate that he be treated compassionately by German authorities” and be released to spend his remaining days with his family.189

Most German observers, however, were not convinced by Demjanjuk’s claims of poor health, and once it ended, swiftly pointed out that Demjanjuk had indeed survived the lengthy trial. Deutsche Welle reported shortly after the trial that the defendant “suddenly seemed much less frail” than he made out during proceedings.190 Bild, having obtained pictures of Demjanjuk walking in the garden at the nursing home he was moved to after his conviction, published the headline “The Miraculous Recovery of the Evil Guy”.191 In the weekly magazine Spiegel, Ulrich Maass, a public prosecutor of Nazi crimes in North Rhine-Westphalia, noted approvingly upon Demjanjuk’s conviction that while defendants in Nazi trials had historically been declared unfit to stand trial, “this doesn’t fly anymore”.192

183 Michael Scharf, ‘Demjanjuk’s Prosecution Set Precedent’. Jewish Daily Forward, March 18, 2012 184 Tom Segev, ‘Demjanjuk’s Five-year Sentence Isn’t Worthy of Praise’. Haaretz, May 13, 2011 185 Wulf Kansteiner ‘Review of The Mauthausen Trial: American Military Justice in Germany’ German History 31, no.4 (2013), 605 186 Douglas, The Right, 198 187 Fulbrook, Reckonings, 348 188 John Demjanjuk Jr, ‘News and Views: The Germans’ House of Cards’. Ukrainian Weekly, December 27, 2009

189 ‘Ukrainian World Congress appeals for Demjanjuk’. Ukrainian Weekly, September 6, 2009 190 Rabitz, ‘Murderer or Victim?’ 191 Douglas, The Right, 256 192 Jan Friedman, ‘Interview with Nazi War Crimes Prosecutor: ‘I Have Never Seen Remorse’’. Der Spiegel, May 10, 2011 34

More international observers were also unconvinced by Demjanjuk’s show of infirmity. Douglas noted during the trial that “the consensus is that the defendant is faking it”,193 later writing that he suspected the claims of poor health were part of a deliberate strategy to stall the proceedings to the point where they were called off.194 Jewish Journal, a Los Angeles based magazine, remarked in 2014 that Demjanjuk’s appearances in a wheelchair or gurney were a “play for sympathy that most observers dismissed as phony”.195

Demjanjuk died within a year of a trial’s completion, so his health may indeed have been somewhat poor during the proceedings, as might be expected for a man of his age; if not poor enough to delay the proceedings as much as it did. His son, John Demjanjuk Jr, would later claim that his father’s death was the result of foul play; that he was unexpectedly and inappropriately given a high dose of a potentially dangerous pain killer, leading to his death.196 This would seem to contradict his previous insistence that his father had been at death’s door throughout the trial.

Demjanjuk’s infirmity was discussed so much that it became a “key concept” that was established across the discourse surrounding the trial.197 By discussing Demjanjuk’s age and physical condition observers passed judgement on the trial proceedings as a whole. For those who doubted that the trial could achieve any meaningful kind of justice, the defendant’s age and health were reasons to criticise the very motives and reasoning behind the trial; for those who were hopeful of a historic and symbolic conviction, it was a virtue of the trial that did it did not allow age or feigned poor health to prevent its success. Still other observers supported the trial in theory but felt that it was simply too late for a criminal trial, and that Holocaust memory, and Vergangenheitsbewaltigüng, would be better served by a different form of transitional justice.

The Demjanjuk case was high-profile unfinished business, and it is unsurprising that the defendant’s health was not allowed to prevent the trial’s conclusion. Either to allow his age to mean he avoided prosecution, once the US wished to deport him, or then to allow his health to deter a conviction, once the trial had started, would have brought the German judiciary and nation immense criticism. While it is clear that Demjanjuk’s infirmity was indeed a key theme in the reaction to the trial, it was not the most significant or the most contentious issue. The issues of Germany’s motivation for prosecuting Demjanjuk and the disputed description of Demjanjuk as a victim or perpetrator of Nazi crimes were closer to the heart of the emotional and historical debates that the trial stimulated. Most

193 Douglas, The Right, 24 194 Douglas, The Right 198 195 Jonathan Kirsch, ‘Twisted Tale of Demjanjuk’. Jewish Journal, February 12, 2014 196 ‘Nazi camp guard’s son: ‘docs killed my dad’’. The Local, June 14, 2012 197 Pentzold et al, ‘Reconstructing’, 35 35

of the time, the defendant’s age and health were subsidiary issues by which these debates could be introduced and framed.

The issues of age and infirmity have since continued to be a recurring feature of the prosecutions of men in their nineties that the Demjanjuk trial helped to bring about. The proceedings against defendants such as Ernst Tremmel, who died a week before his trial was to begin in 2016,198 and Hubert Zafke, whose trial had to be abandoned due to his poor physical health and late-stage dementia,199 illustrated German prosecutors’ willingness to pursue cases even against ex-camp guards who genuinely were in severely poor health.

Political significance and motivation of the trial

It is not a new notion that Holocaust trials have political and educational, as well as legal, motivations. The Austrian politician, author and Holocaust survivor Hermann Langbein, writing after the Frankfurt Auschwitz trials of 1963-1965, described that the “important political meaning” of those processes was that a “black spot” was addressed in terms of public opinion of the Holocaust.200 The Eichmann and Demjanjuk trials in Jerusalem were also partly motivated by the desire to memorialise and educate, through their use of the in-court narration of victims’ stories. Landsman has convincingly argued that an over-reliance on victim testimony in Jerusalem to establish the defendant’s guilt contributed to the wrongful conviction.201 A conflict can therefore be seen between the political significance of Holocaust trial proceedings and their function as criminal trials. It was likely that a high- profile trial such as the Munich trial would raise questions as to the motivations behind the prosecution, especially given that it came after a long spell without any prosecutions in Germany, that it was a unique instance of a defendant deported from the US to Germany to face trial, and that it was widely considered to be the last significant trial of a Holocaust perpetrator. As the journalist Ben Knight wrote in Deutsche Welle, perhaps foremost among the questions raised by the trial of John Demjanjuk was: Why now?202

198 Auschwitz guard Ernst Tremmel dies a week before trial’. BBC, April 7, 2016 199 Eytan Halon, ‘Auschwitz medic found unfit to stand trial’. Jerusalem Post, September 2, 2017 200 Buttner, ‘Epilogue’, 52 201 Landsman, ‘Eichmann’, 104 202 Ben Knight, ‘Demjanjuk presents German law with an almost impossible problem’. Deutsche Welle, December 21, 2012 36

In Germany the political motivation of the trial was widely commented upon. Christopher Burchard, professor of Law at Goethe-Universität, questioned before the trial why Germany had decided to prosecute, years after they could have potentially done so; “I presume it was a political decision”.203 Aaron Buck, a press officer for Munich’s Jewish community, suggested that during the trial that it was of great political significance for German society at large, which hoped for a “a good end of the story”, but less significant for German Jews, for whom Demjanjuk would remain merely one of thousands of perpetrators.204 The notion of a good end to the story was also brought up after the conclusion of the trial; the motivation of the German judiciary had been, in the words of Cornelia Rabitz in Deutsche Welle, “to atone for some of its past shortcomings”,205 a view echoed by the academic Buttner.206 Jewish organisations widely celebrated the verdict, and Avner Shalev, Chairman of Yad Vashem, considered that the trial successfully represented a legal recognition of the societal advancement in the understanding of the Holocaust; that “myriads of Europeans on many levels” had played a criminal role in perpetrating Nazi crimes.207 The international academic response also found the political motivation for convicting Demjanjuk; Rashke wrote that, in retrospect, the trial had only taken place because the German government wished to quell negative publicity surrounding its inaction regarding Demjanjuk, and while approving of the conviction, suggested that the decision to prosecute was ultimately a political one.208 Similarly, American historian Claire E. Aubin later wrote that the main purpose of the trial had been to address the legal record and therefore re-legitimise a legal system “that had proven so wildly unreliable and unjust”.209

For some, the apparent political motivation spurred an accusation at its conclusion that the trial had been an invalid, or a failed, attempt at justice. Ukrainian and Ukrainian diaspora observers certainly thought so; the Kyiv Post lamented the “politicization of the law” that the trial allegedly entailed, and Tamara Olexy, president of the Ukrainian Congress Committee of America (UCCA), argued that it represented “a judicial system being used for political ends”.210 Elsewhere Wittman, speaking to the Canadian media network CBC immediately after the trial, praised some of the trial’s processes but stated her belief that the trial primarily constituted “another failed attempt to show that

203 Kohout, ‘Satutory’, 48 204 AJ Goldman, ‘Demjanjuk’s Long Road to Justice Nears a Murky End’. Jewish Daily Forward, November 10, 2010 205 Cornelia Rabitz, ‘Demjanjuk paid for the mercy afforded to others’. Deutsche Welle, May 12, 2011 206 Buttner, ‘Epilogue’, 61 207 Chana Ya’ar, ‘Demjanjuk convicted in Munich’. Israel National News, May 12, 2011

208 Rashke, Useful Enemies, 506 209 Claire E Aubin, The Internationalization Of Atrocity: John Demjanjuk and the Politics of Post-War Atrocity. (LAP LAMBERT Academic Publishing: 2017), 26 210 Paul Berger, ‘Ukrainians Cling To Belief That Demjanjuk is Innocent’. Jewish Daily Forward, May 18, 2011 37

the legal system is committed to trying old Nazis”.211 Hasian argued in 2014 that the primary motive of the prosecution of Demjanjuk was to demonstrate an advance in Vergangenheitsbewaltigüng,212 and argued that this goal had led the court to be too limited in its consideration of the context of the Holocaust and of the defendant’s crimes.213

Some members of the German and Israeli media, however, such as Cornelia Rabitz in Deutsche Welle and Martin Scharf in Jewish Daily Forward, suggested that the verdict had a political significance that went beyond Germany, and beyond Holocaust memory; that of the deterrence of current and would-be génocidaires.214 This belief had already been stated before the trial began by Swiss historian and editor of the Journal of Genocide Research Dominik J. Schaller, who noted that “the forthcoming trial will be a strong signal to dictators and their henchmen worldwide”.215 Observations such as these added to the conception that the trial represented something more than a trial of one man for accessory to murder; that the trial was of the greatest historical and political import, both in terms of the past and the future.

The obvious political significance of the trial led some to suggest that a conviction was, if not a foregone conclusion, then at least highly likely. Beck suggested during the trial that it would not be prudent, in terms of Vergangenheitsbewaltigüng, for an acquittal to be delivered.216 After the trial Douglas wrote that that an acquittal would have been a disaster, as a final and high profile reminder of Germany’s failure to bring Nazi criminals to account,217 something the German prosecutors and wider society would have been desperate to avoid, and the American magazine New Republic would later report in 2016 that “by all accounts, Demjanjuk arrived to his indictment…a beaten man”,218 suggesting in retrospect that there had been a certain inevitability to proceedings.

This sense of inevitability induced the Ukrainian diaspora media, such as the American Ukrainian Weekly, to characterise the trial as a show trial; American-Ukrainian lawyer Andriy J. Semotiuk wrote there afterward that Germany’s determination to make a political statement led it to forego due process and rule of law.219 For supporters of Demjanjuk, the fact that the trial broke with much of the established legal precedent of Nazi trials in Germany illustrated that Demjanjuk’s conviction had been prearranged, and that the German judiciary had bent to political demands. The

211 Clibbon, ‘Demjanjuk Verdict’ 212 Hasian, ‘Vectors’, 435 213 Hasian, ‘Vectors’, 448 214 Rabitz, ‘Demjanjuk paid’; Scharf, ‘Demjanjuk’s Prosecution’ 215 Schaller, ‘From the editor’, 196 216 Beck, ‘Does Age’, 356 217 Douglas, The Right, 1 218 David Solomon, ‘The Many Trials of a Nazi War Criminal’. New Republic, April 5, 2016 219 Andriy J Semotiuk, ‘In memory of John Demjanjuk: An analysis of his case’. Ukrainian Weekly, April 1, 2012 38

fact that the conviction was based upon both the extensive investigatory work of the Ludwigsburg Central Office and the testimony of historical experts was lost on these observers. While the assertions that the trial proceedings were merely for show, with the verdict a foregone conclusion, are not credible, it does seem fair to state that Germany would not have sought Demjanjuk’s extradition if it was not highly confident in the case assembled by its prosecutors.

There was agreement, therefore, across the spectrum of reactions, that the trial was, at least in part, politically motivated. What was in dispute was whether this signified a nefarious or noble aspect of the trial; whether it represented a demonstration of Aufarbeitung, a coping strategy telling only part of the truth of the Holocaust for the purpose of mollifying a popular German sense of guilt, or a true advancement in Vergangenheitsbewaltigüng embracing the trial’s historical and political significance for educational and moral good, while providing a fair trial of the defendant. It was unavoidable that the trial, despite its domestic nature and relatively minor charge, would take on great and historical political significance, and it is this political responsibility thrust upon the court in Munich that encouraged such divisive reactions.

Demjanjuk’s alleged victimhood during the Second World War

Reactions to the trial were shaped to a large extent by the observers’ conception of Demjanjuk’s wartime activities, in terms of responsibility and victimhood. In their 2016 analysis of online reactions to the Munich trial, Christian Pentzold and his co-authors noted two broad, opposing conceptions of Demjanjuk and his wartime activities; that of him being a “responsible culprit”, and contrastingly, that of him being a “victim of circumstances”.220 The portrayal of Demjanjuk as a victim, rather than a perpetrator, of Nazi persecution during the Second World War was common among reactions in Ukrainian communities and media outlets, both in Ukraine and among the Ukrainian diaspora. It has been noted by historians that Ukrainians have long been upset by the popular portrayal of Ukrainian complicity in the Holocaust, and that protests against the first Demjanjuk denaturalisation trial, and subsequent Jerusalem trial, helped to shape a narrative of victimization, both during and since the war, among Ukrainians and the Ukrainian diaspora.221 American historian Glenn Sharfman noted that Ukrainians used the first Demjanuk trial to attempt “to correct the record” regarding

220 Pentzold et al, ‘Reconstructing’, 38 221 John-Paul Himka and Joanna Beata Michlic, Bringing the Dark Past to Light: The Reception of the Holocaust in Postcommunist Europe, (Lincoln: University of Nebraska Press, 2013), 649; Grzegorz Rossolinski-Liebe, ‘Holocaust Amnesia. The Ukrainian Diaspora and the Genocide of the Jews’ in Yearbook of Contemporary History 1 ed. Thomas Schlemmer and Alan Steinweis German (2016), 127 39

Ukrainian collaboration with the Third Reich,222 and it is therefore unsurprising that at the occurrence of a second Demjanjuk trial, over twenty years since the start of the flawed first one, the Ukrainian diaspora would again vocally reject what they saw as yet another victimization of Demjanjuk, and of Ukrainians as a whole.

In the aforementioned letter of the Ukrainian World Congress to Angela Merkel, sent shortly after the trial began, it was asserted that “it is all too easily forgotten” that the people of occupied territories such as Ukraine during the Second World War were “first and foremost, victims of brutal Nazi occupation authorities”.223 The portrayal of Demjanjuk as a perpetrator rather than a victim of Nazi crimes constituted a revictimization of the Ukrainian community as a whole, by this conception. The view of a Munich resident of Ukrainian heritage, that Demjanjuk “was a victim himself and had to react in this way, because he needed to survive”,224 encapsulates the reaction of the organised Ukrainian diaspora to the trial. The decision of the court that Demjanjuk had chosen to remain at Sobibor out of his own interests was always likely to stimulate outrage from those observers who considered Demjanjuk as representative of Ukrainian victimhood before, during and after the Second World War.

Some historians and legal academics writing after the trial, while emphasising Demjanjuk’s role as a perpetrator of the Holocaust in his time at Sobibor, wished to portray his role during the Holocaust as nuanced; that he may have occupied a space somewhere between a perpetrator and a victim. Buttner argued that “certain similarities” could be found between Trawniki such as Demjanjuk and Jewish capos in death camp, who occupied the conceptual ‘grey zone’ as made famous by the Italian writer and Holocaust survivor Primo Levi.225 A recognition of the pressure he was put under to collaborate with the Nazis was cited by scholars such as Rashke, who described Demjanjuk as an ordinary man facing “a high probability of either starving to death, dying from overwork and disease, or being routinely executed” and questioned what the reader would have done in his place;226 Douglas, who noted that at the time of Demjanjuk’s capture that Ukrainian POWs may well have believed that collaboration was their only way to escape death, even if this may not have been strictly true;227 and Schaller, who wrote in his preview of the trial that upon capture “Demjanjuk was faced with the Nazis’ policy of intentional starvation, and regarded collaboration as a way to survive”. 228 None of these

222 Glenn Sharfman, ‘The Quest for Justice: The Reaction of the Ukrainian-American community to the John Demjanjuk Trials.’ Journal of Genocide Research 2, no.1 (2000), 69 223 ‘Ukrainian World Congress appeals for Demjanjuk’. Ukrainian Weekly, September 6, 2009 224 ‘Ukrainians back Demjanjuk, convicted and stateless’. Fox News, May 27, 2011 225 Buttner, ‘Epilogue’, 52 226 Rashke, Useful Enemies, 536 227 Douglas, The Right, 225 228 Schaller, ‘From the editor, 196 40

academic commentators wished to excuse Demjanjuk of his crimes, and all applauded his conviction, but they believed that Demjanjuk, like millions of others across Europe, had an element of victimhood in his wartime experience too, something that was not explicitly acknowledged by the court in Munich; a court of the very nation that had victimised him.

Still other commentators emphasised the entirely different social conditions and value system under which Demjanjuk committed the acts for which he was charged. Beck wrote that “for the modern generation it is almost impossible to understand how it must have felt to be part of the Nazi value system”, and while she did not think that this lack of understanding could provide an excuse for Demjanjuk’s wartime activities, she did believe that it should mitigate the punishment he received.229

Other commentators resolutely rejected the notion of Demjanjuk’s wartime victimhood. As Pentzold, Sommer, Meier and Fraas noted, international broadcasting media and social media references from the period 2009 to 2016 to Demjanjuk’s victimhood during the war typically lacked precise details or knowledge of his wartime actions.230 Daniel Solomon, writing in American magazine New Republic, wrote in 2016 that “by 2009, Demjanjuk’s villainy was not in question”.231 At the trial’s conclusion Der Spiegel approvingly noted the closing remarks of Cornelius Nestler, the lawyer representing the Nebenkläger, that in the time and place in question, risk and danger were all- pervading, and that hence, someone in Demjanjuk’s position must be expected to have either taken the risk of the joining the partisans, or “fending for himself at home”, rather than continuously collaborating with the Nazi Holocaust perpetrators.232

Jonathan Kirsch, writing in Jewish Journal in 2014, also rejected Rashke’s question of what we would have done in Demjanjuk’s position: “a Ukrainian might have the option of putting himself in service to his Nazi masters, but a Jew faced only death. For that reason, the question itself does not carry much moral weight”.233 The notion that Demjanjuk had choice in his course of wartime action meant that for Jewish audiences, his supposed victimhood was always be likely to be firmly rejected. One member of the Nebenkläger, Philip Bialowitz, echoed the court’s position in an interview after trial, stating that there is “always a moral responsibility to resist an immoral order”.234 Reactions such as these after the trial sought to refocus the discourse on Demjanjuk’s “asserted compliance and

229 Beck, ‘Does Age’, 358 230 Pentzold et al, ‘Reconstructing’ 38 231 Solomon, ‘The Many’ 232 Gisela Friedrichsen, ‘Demjanjuk Trial Winds Down: Families of Sobibor Victims Value Memory Over Malice’. Der Spiegel, May 5, 2011 233 Kirsch, ‘Twisted Tale’ 234 Philip Bialowitz, Interview by Selma Leydesdorff, 01:45:50 41

inhumanity”,235 at the expense of his potential status as a victim, and echoed the court’s view regarding the inappropriateness of a putative necessity defence.

Before the trial Demjanjuk was typically condemned as a simple Nazi perpetrator in the German media, with some lingering misunderstanding of his role during the war; Spiegel Online, noting that there was “no mercy” for Demjanjuk in the German media, mistakenly described him as being accused of being a “notorious” guard at Sobibor, “Ivan the Terrible”.236 Elsewhere, Bild disparagingly reported on Demjanjuk’s post-war description of himself as a victim of the Nazis and described the defendant as a “Nazi war criminal” and a “death camp monster”.237 Die Tageszeitung argued that it was Demjanjuk’s status as a Trawniki that actually made the trial most worthwhile; noting (incorrectly) that for the first time a German court would deal with someone who worked as a “’volunteer minion of the Nazis”.238 Thus, the notoriety Demjanjuk gained during the Jerusalem trial, and the famous nickname ascribed to him there, influenced his portrayal in the media before the trial proceedings began.

After the trial, in a remarkable turnaround, the mainstream German and international media often chose to remain uncommitted as to the question of whether Demjanjuk was a victim or a perpetrator. As noted by the German social scientist Vivien Sommer, in her review of the internet discourse accompanying the trial, media consideration of Demjanjuk’ was often “verbalized as a question”.239 Headlines such as “Accused Nazi Helper John Demjanjuk: Murderer or Victim?” in Deutsche Welle, and “John Demjanjuk: Victim or Nazi War Criminal?” in International Business Times, referred to this historical dilemma without providing any definitive opinion in the accompanying articles, even after the trial.240

Some commentators said that it was indeed possible for Demjanjuk to have been both a victim and a perpetrator during the Second World War. Wittman, commenting for CBC, concluded that Demjanjuk was a perpetrator, but “of a more complex kind” than many Germans who had previously been acquitted by German courts, despite plentiful evidence of their participation in mass-murder.241 Rabitz noted in Deutsche Welle that some unease regarding the verdict was beginning to spread, “for it is a cog in the machine that was punished”. The defendant was a “victim of political and historical

235 Pentzold et al, ‘Reconstructing’, 37 236 ‘The World from Berlin: ‘The Last Nazi Trial’. Spiegel Online, May 13, 2009 237 ‘Former death camp guard said he was a victim of the Nazis’. Bild, April 24, 2009 238 The World from Berlin: ‘The Last Nazi Trial’. Spiegel Online, May 13, 2009 239 Vivien Sommer, ‘The online discourse on the Demjanjuk trial. New memory practices on the World Wide Web?’ ESSACHESS. Journal for Communication Studies 5, no. 10 (2012), 145 240 Pentzold et al, ‘Reconstructing’, 39 241 Clibbon, ‘Demjanjuk Verdict’ 42

circumstances beyond his control”, she wrote.242 The trial proceedings evidently had helped to temper media portrayals of Demjanjuk as a willing Nazi villain. Media observers now struggled to arrive at a more nuanced portrayal, one that both condemned his actions and contextualised them.

The difficulty of finding common ground between the opposing conceptions of Demjanjuk as a victim and Demjanjuk as a willing perpetrator can be seen in comparing Rabitz’s comments to those of Bernie Farber, the CEO of the Canadian Jewish Congress; “Guards like Demjanjuk, who worked at the camp, were essential cogs in the machinery of mass murder. This can never be forgotten.”243 There was clear disagreement whether or not his status as a low-level “cog” in the machinery of mass-murder could be invoked in Demjanjuk’s defence, or rather, would serve to condemn him. The dispute of whether he had volunteered to be such a cog or not furthered this division.

The Munich trial was ultimately convened to determine what Demjanjuk did during the war, not what had been done to him, and there can be little doubt that the court’s conclusions as to what he did were correct. The prosecution attempted to head off the portrayal of Demjanjuk as a wartime victim by providing an account of the nature of Trawniki collaboration through the testimony of Peter Black and others, that detailed the relatively favourable conditions the Trawniki men worked under. Some observers, however, still maintained that Demjanjuk and his wartime activities as a Trawniki had not been fully contextualised. For these observers there remained a sense of injustice in the prosecution of a non-German by the German state, for crimes committed at the behest of a previous German state.

Demjanjuk’s alleged victimisation by the trial

A second aspect of Demjanjuk’s alleged victimhood revolved around the trial process itself. For those who believed that Demjanjuk represented a victim of Nazi persecution during the Second World War, it was inevitable that the trial would constitute an extension of this victimisation. Meanwhile, for those who did perceive Demjanjuk as primarily a perpetrator, the extraordinary nature of the trial processes still left the impression that the defendant had been unfairly treated to some extent. The innovative strategies used by the prosecution and the resulting verdict were always likely to draw comparisons to the defendants in previous Nazi trials, and to the fact that earlier, Sobibor SS guards had been acquitted in German courts. Demjanjuk’s defence case in the courtroom was largely based

242 Rabitz, ‘Demjanjuk paid’ 243 ‘Demjanjuk convicted in Nazi death camp case’. CBC, May 12, 2011 43

around this comparison; his lawyer Ulrich Busch argued that a conviction would represent a “moral and legal double standard”.244

The Ukrainian media and diaspora unsurprisingly agreed. Writing in the Kyiv Post in 2012, Andriy Semotiuk argued after the trial that that Demjanjuk had been convicted of a “newly invented criminal offence”, that of mere presence in the death camp,245 and Tamara Olexy, the aforementioned president of the UCCA, similarly called his trial “a case of selective prosecution”,246 that of a vulnerable Ukrainian rather than a German. Ukrainian Weekly and the UCCA repeated the long-time assertion, seen also during the Jerusalem trial, that the Trawniki ID card used by the prosecution was a fake created by the KGB, and lamented as unfair that the court had rejected the defence’s request that a 1400 page Soviet file on Demjanjuk’s wartime activities, that could contain exculpatory evidence, should be examined by the court. 247

Demjanjuk was also the recipient of sympathy before the trial from American political figures such as Pat Buchanan, 248 a former presidential advisor who had been accused repeatedly of antisemitism and Holocaust denial, and Demjanjuk’s former Ohio congressman James Trafficant, who described his former constituent as “persecuted” by the German authorities.249 Proclamation of Demjanjuk’s alleged victimisation by the proceedings was widespread on mainstream websites such as Facebook and YouTube. 250

More surprisingly, disapproval of the prosecution of Demjanjuk was also found to some extent in the Israeli media. Yitzhak Laor, writing in Haaretz at the trial’s start, depicted Demjanjuk as merely one of many Nazi collaborators who had moved to the US after the Second World War, and described the German decision to single him out as a “self-debasement” of the nation’s judicial system.251 Israel National News reported after the trial that Yoram Sheftel, Demjanjuk’s lawyer in Jerusalem, considered the Munich conviction to be a “farce”, and Demjanjuk’s release to a nursing home as proof that the court did not have confidence in its own ruling.252 While these Israeli criticisms did not conceive Demjanjuk as a wartime victim in the same manner as the organised Ukrainian diaspora did, they shared the concern that there was something arbitrary and demonstrative about his prosecution.

244 Douglas, The Right, 21 245 Andriy J. Semotiuk, ‘The Demjanjuk odyseey as viewed in the rear-view mirror’. Kyiv Post, July 15, 2012 246 ‘Ukrainians back Demjanjuk, convicted and stateless’. Fox News, May 27, 2011 247 ‘UCCA issues statement on Demjanjuk trial’. Ukrainian Weekly, May 29, 2011; Demjanjuk threatens hunger strike unless court agrees to seek evidence’. Ukrainian Weekly, February 27, 2011 248 Buchanan, Pat. ‘The Persecution of John Demjanjuk’. buchanan.org, May 13, 2011 249 ‘Traficant says he would testify for Demjanjuk’. Jewish Telegraph Agency, October 30, 2009 250 Sommer, ‘online discourse’, 144 251 Yitzhak Laor, ‘Germany Shouldn’t Have Tried Ivan the Miserable’. Haaretz, December 2, 2009 252 Elad Benari, ‘Demjanjuk Verdict is a Farce’. Israel National News, May 13, 2011 44

While academic observers largely did not go so far as to label Demjanjuk as a victim of the trial process, many still noted that he was indeed treated rather exceptionally in comparison to previous defendants of the crimes of which he was accused, and that here a certain injustice was evident. At the trial’s conclusion Frank Saliger, professor of criminal law at Hamburg’s Bucerius Law School, commented that Demjanjuk’s conviction in the wake of the acquittal of greater perpetrators represented a great imbalance, which left him with “a bitter taste.”253 Exacerbating the consideration that Demjanjuk was on the wrong side of an unfair imbalance of the legal record was the fact that some of his direct superiors at Sobibor had previously been acquitted. Accordingly, Buttner questioned the fairness of the verdict and described the “tragic…fate of Demjanjuk”.254 German Historian Jörg Friedrich argued in 2012 that the case demonstrated that the German justice system was prepared to “lower the bar of required evidence to convict Holocaust perpetrators”.255 This author would rather suggest that a bar was removed entirely, that of evidence of specific crimes, and replaced with another, that of historical expert testimony regarding the functional nature of a person’s role at a particular death camp. Rabitz, writing in Deutsche Welle after the verdict, opined that Demjanjuk “paid for the mercy afforded to others”,256 hinting at a political victimisation of the defendant that came as a direct result of the previous acquittals.

The apparent contradiction between previous acquittals and Demjanjuk’s conviction has also been acknowledged by some who wholeheartedly approved of the verdict, such as Ulrich Maas, a former head of North Rhine-Westphalia’s public prosecutor’s unit for Nazi crimes. In an interview with Der Spiegel he expressed a “certain queasiness” at seeing Demjanjuk convicted after his superiors at Sobibor, and other high-ranking SS men, had been acquitted, “perhaps comparable with the feeling one has when shoplifters are caught while the big economic fraudsters manage to get away scot-free. But the alternative cannot be to let the shoplifters go too”.257 This view has been echoed by scholars writing since the trial. Douglas has argued that the mistakes of previous trials cannot be a sufficient reason for a guilty man to walk free again, while still acknowledging that the Munich trial did have a certain “unpleasant look”,258 and legal scholar David Kohout defended the conviction with reservations about “the historical perspective” and imbalances in the case law produced -- but still concluded that “this justice may show signs of deficiencies but it is still justice”.259

253 ‘German court convicts Demjanjuk, sentences him to five years in prison’. Ukrainian Weekly, May 15, 2011 254 Buttner, ‘Epilogue’, 52 255 Knight, ‘Demjanjuk presents German law’ 256 Rabitz, ‘Demjanjuk paid’ 257 Friedman, ‘Interview’ 258 Douglas 22 259 Kohout, ‘Statutory’, 52 45

The court’s acceptance of two novel prosecutorial approaches in convicting Demjanjuk raised the question of whether it would be fairer to continue along much-maligned legal precedent, and acquit the defendant, or to belatedly reject these precedents at the expense of judicial consistency. An acquittal would have drawn immense criticism of the court too, likely by some of the same commentators who criticised his conviction; having brought him to trial, no purpose would have been served by acquitting him on the grounds that it had been a mistake that his superiors had been found not guilty. The subsequent convictions of remaining low-ranking German camp guards have helped to introduce some belated judicial consistency, as it is now not only a Ukrainian Trawniki who has been convicted following the acquittal of his superiors.

Other commentators writing after the trial enthusiastically welcomed the new legal approach seen in Munich. Fulbrook argued that the new prosecutorial syllogism requiring only Demjanjuk’s presence in a working capacity to convict him of accessory to murder grasped the systemic nature of the Holocaust in a way that previous trials had not.260 This was echoed by Douglas, who believed that the verdict had remained within “available statutory strictures” but managed to grasp the “essential logic of genocide”.261

Still other observers also argued that the type of legal framework used to convict Demjanjuk had in fact been seen before in Holocaust trials. The historian Wulf Kansteiner wrote that the prosecutorial strategy used in Munich was highly reminiscent of the “common design charge” used by a US Military commission court in 1946, in one of the successor trials to Nuremberg, which sentenced 49 men to death for their roles at the Mauthasen extermination camp.262 Douglas noted that during the trial Nestler quoted at length from a judgement in Hagen in 1966 which had accepted the notion that SS men could be convicted on the basis of their ‘functional participation’, and that the Munich court was therefore obliged to “resuscitate the promising doctrinal antecedents that had failed to take hold”.263 This instance of a rare highlight in the German case law was also noted by the Ludwigsburg Central Office prosecutor Thilo Kurz, who argued that the Demjanjuk conviction was “nothing new”, although he acknowledged that this legal precedent had been short-lived and rejected by German courts soon after.264

Dutch historian Dick de Mildt has noted that the German Federal Court of Justice rejected the notion of a break with past jurisprudence when it upheld Oskar Gröning’s conviction in 2016, which

260 Fulbrook, Reckonings, 349 261 Douglas, The Right, 25 262 Kansteiner, ‘Review’, 604 263 Douglas, The Right, 254 264 Felix Bohr, ‘Auschwitz Trial: Late Case Raises Questions about Justice System’. Der Spiegel, September 30, 2013 46

used a similar argument of functional participation as used in Demjanjuk’s conviction. The court rather stated that the Ludwigsburg Central Office had previously declined to prosecute low-ranking perpetrators, and these perpetrators had not enjoyed any legal protection.265 It would seem likely that investigators declined to bring cases against these low-ranking perpetrators, however, largely because of the great difficulty of convicting them, as outlined in Chapter 1. These experts are right to point out that Demjanjuk’s conviction was not the utter novelty depicted by some observers, due to the precedent of functional participation accepted in Hagen in 1966. Commentators such as Douglas and Kurz therefore aimed to portray Demjanjuk as fortunate to have escaped conviction for so long, rather than as unfortunate to be convicted after so long. It is still understandable, however, that for many the conviction of Demjanjuk represented an exceptional and unexpected legal turn, even if it was not an absolutely unprecedented one. This is because of the surprise that accompanied his prosecution, the historic strength of the putative necessity defence, and the fact that the functional participation defence was quickly rejected after the Hagen trial and not resuscitated until Munich.

Some commentators believed that Demjanjuk’s defence in Munich was poorly constructed and delivered, and that his conviction stemmed partly from this. It was argued briefly in Chapter 3 that Busch’s contradictory statements that Demjanjuk had never worked at Sobibor, but that if he had done so, he would not have been at fault for the killings there, precluded an effective putative necessity defence.266 Houwink ten Cate wrote before Demjanjuk’s death that he expected the appeal to see a more rigorous application of the putative necessity defence, and that an overturning of the original decision was therefore not out of the question.267 Hasian raised another issue: according to him, the defence team wasted its time questioning the reliability of the testimonies of the Nebenkläger, which were not relevant to the matter of Demjanjuk’s guilt, and questioning the prosecutors’ motives.268 It seems fair to suggest that indeed, Demjanjuk was not represented well at the trial, though this does not amount to victimisation.

Gisela Friedrichsen, writing in Der Spiegel, mounted a defence of the defence lawyer, however, arguing that Busch was faced with overwhelming odds; she rather pinned blame on Demjanjuk himself, who “behaved like an obstinate old man and refused to participate in the trial in any reasonable way”.269 The defendant had declined to give any context to his actions, to express any remorse, or even to address the court except through his lawyer. Demjanjuk’s poor conduct in the courtroom was noted

265 Dick de Mildt, Interview with Author. November 11, 2019 266 Douglas, The Right, 211 267 Houwink ten Cate, ‘Looking Back’ 268 Hasian, ‘Vectors’, 438 269 Friedrichsen, ‘trial winds down’ 47

by many other observers, and it is likely that his own strong sense and self-portrayal of victimhood lost him potential sympathy.

The imbalance in the legal record created by Demjanjuk’s conviction is glaring, as the arguments used to convict him were almost entirely without precedent; whether this meant that Demjanjuk was treated unfairly, or rather that he was at long last a low-level perpetrator of the Holocaust who was treated fairly, rather than too leniently, was an argument that comprised most of the reaction to the trial proceedings.

Conclusion

Although reactions to the trials were widely divergent, and often largely guided by preconceived political opinions, some agreement can be found across the range of reactions: that the trial was of great political and historical significance, and that the German justice system had performed an innovative reappraisal of its methods in order to help secure a conviction. Whether this represented a triumph or a travesty was disagreed upon. To properly acknowledge the significance of the trial all facets of the divergent academic and media reaction should be considered. Demjanjuk was indeed old, at least somewhat sick, and most Holocaust perpetrators died before ever being punished, but age should not entirely prevent prosecution for historical crimes. Demjanuk was a Trawniki, not a German SS member, and his collaboration was therefore predicated on his desire to survive -- but he did not attempt to escape his role or to evade his murderous duties, as some other Trawniki did. His conviction did indeed represent an imbalance in the legal record, given previous acquittals, but previous legal injustices should not necessitate new ones. While there was a political, demonstrative element to Demjanjuk’s trial, this is an inherent feature of all trials of historical crimes in cases of mass atrocity. Finally, the conviction was indeed founded on a contentious and syllogistic argument that did not require evidence of specific crimes, but it was also one that captured the essence of the functional nature of genocide perpetration in a way the law had previously failed to. A large amount of reactions of the trial instead played out along pre-ordained political and cultural lines that failed to acknowledge what a truly complex and historically significant trial it was.

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49

Chapter 5: The Demjanjuk Trial in Retrospect

Legal and memorial developments since the Munich trial show that it has already become a significant part of the legal and historical record; not least in that it precipitated more high-profile prosecutions, mostly of Germans who worked at the Auschwitz complex. The way the Munich trial brought about a new wave of prosecutions in Germany helps to illustrate its great significance, both legally and in terms of collective Holocaust memory. So much more was at stake in Munich than the final fate of one ageing former camp guard; also at question was the culpability of many thousands more like him, and how culpability for the Holocaust would be recalled by current and future generations. This final chapter shall examine the legacy of the trial in relation to the purpose and form of Holocaust trials, and the long-standing national task of Vergangenheitsbewältigung. The question is to what extent the trial brought any form of historical or legal closure. The very notion of achieving closure in the context of genocidal crimes is, of course, uncertain. The psychiatrist and transitional justice scholar Harvey M. Weinstein has criticised the prevailing use of this term in transitional justice contexts, suggesting that it lacks conceptual clarity or meaning for survivors.270 It is used here only to indicate the sense of a satisfactory emotional or legal conclusion to the decades-long legal saga of John Demjanjuk.

Retribution vs education: the Munich trial in the legal record

A certain pragmatism was seen in Munich, as the prosecutors’ central goal of convicting Demjanjuk was prioritised over the kind of didactic aims seen in some earlier Holocaust trials. Observers such as German historian Kim Christian Priemel expressed surprise that convicting the defendant was seemingly prioritised over the establishment of a historical record in the courtroom.271 The trial was hardly divorced from the historical record, however. The reliance on expert historical testimony to establish Demjanjuk’s guilt brought historians into the courtroom in a manner that

270 Harvey M Weinstein. ‘Editorial Note: The Myth of Closure, the Illusion of Reconciliation: Final Thoughts on Five Years as Co-Editor-in-Chief.’ The International Journal of Transitional Justice 5, no.1 (2011), 3-4 271 Priemel, ‘Consigning’, 580 50

subsumed the didactic purpose into the retributive purpose; the attention given to the expert testimony would comprise the true didactic element of the trial, rather than the victim-witness testimony. As Douglas has argued, rather than Demjanjuk being used as an example to illuminate a historical era, as many commentators on the trial had suggested, a detailed understanding of a historical era was instead deployed in order “to illuminate the actions of a single individual”.272

It would seem, however, that these processes are not opposites, as Douglas suggests, but rather were complementary: both coexisted through the course of the trial and its reception. Historical expertise was used to convict Demjanjuk; the conviction in turn acted as a symbolic conviction of thousands of others like him who functioned as low-level perpetrators of the Holocaust, who now would have been liable for prosecution if they were not already deceased. The trial did not possess explicit didactic goals, but it functioned as a legal enshrinement of the extension of functional responsibility for the Holocaust to all who took an active part in its perpetration.

The perceived lack of inherent didactic aims in Munich compared to some other Holocaust trials was criticised by some, however, who believed that these aims should have been prioritised over the measure of retributive justice achieved in Munich. Hasian believed that a trial that should have served greater educational purposes, and should have widened debate about the nature of genocide perpetration and collaboration instead became entangled in accusations of scapegoating and injustice, for the sake of a single conviction.273 The perception that a conviction could not possibly result in a decent approximation of justice, as argued by Cesarani, 274 meant that the gains in terms of Holocaust education made by the trial seemed particularly meagre. In a trial as emotive as that of a Holocaust perpetrator it was perhaps inevitable that some observers would “mistake the ‘monumental photo’ of total guilt… for the ‘mosaic tiles’”, which, as transitional justice scholar C K Martin Chung described, often happens in trials with historical significance;275 much of the discussion surrounding the trial was conducted as if Demjanjuk had been convicted of the same crimes and level of involvement in the Holocaust as Hermann Göring at Nuremberg in 1946. A recognition that the Munich trial was, after all, the belated conviction of one man for a crime carrying a maximum five year sentence, subsequently released to a nursing home instead of prison, should have tempered some of both the condemnation and the celebration of the verdict.

272 Douglas The Right, 218 273 Hasian, ‘Vectors’, 438 274 Cesarani, ‘Justice’ 275 CK Martin Chung, ‘Against Loveless Judging: Fritz Bauer and Transitional Justice in Postwar Germany’ in International Journal of Transitional Justice, 12 (2018), 24 51

The Demjanjuk trial, however, undeniably was a great legal achievement, in that it did more than any previous Holocaust trial to accurately recognise and condemn the role of a low-level perpetrator of systematic mass murder. Jens David Ohlin, professor of criminal law at Cornell University, cited the success of the Demjanjuk trial in his argument that responsibility for genocide must be understood through a “two-level analysis”; that of a group-level responsibility, which is crucial to understanding the nature of a person’s perpetration in a group crime such as genocide, and that of individual responsibility.276 The manner in which the Demjanjuk trial discarded notions of individual motive and cruelty for the recognition that in the death camp, a person’s guilt was dictated by their function, was what Douglas described as the “simple and great insight of the court in Munich”.277 The court focussed not only on Demjanjuk’s guilt at the group-level through its examination of his role as a functional perpetrator, but also emphasised the defendant’s individual responsibility through its rejection of the putative necessity defence. The two legal precedents established in Munich were highly historically informed and subsequently instructive to the wider audience of the nature of low- level perpetration and collaboration in the death camps.

The trial was therefore symbolically significant in demonstrating a change in the narrative of German legal failure: it showed the power of legal systems to learn from their mistakes.278 The belated nature of this demonstration drew comment, however, as Elizabeth Kolbert asked in the New Yorker: “what does it say about the law’s capacity for self-correction that the self-correction comes when it no longer really matters?”.279 There can be no doubt that the success of this self-correction was tempered by its belatedness. The trial did show great insight, but this also served to highlight the sad lack of insight shown for decades previously.

Put more bluntly, the ground-breaking verdict in Munich was likely possible only after the vast majority of perpetrators had died, and the change in legal precedent could not precipitate thousands of subsequent trials and an extensive legal reckoning. The fact that the verdict only had limited consequences in terms of retributive justice for members of German society, rather than the extremely extensive ones such a verdict could have had, if made even fifteen years earlier, meant that its success was tempered with a sense of what might have been. Whatever the trial’s successes, a sense of lost justice and lost opportunity will linger.

The Munich trial did bring about a handful of further trials, all of Germans, most of whom had served at Auschwitz. Both Bazyler and legal scholar Pavlos Andreadis-Papadimitriou have noted the

276 Jens David Ohlin, ‘The One or the Many.’ Criminal Law and Philosophy 9, no.2 (2015), 289 277 Douglas, The Right, 203 278 Douglas, The Right, 260 279 Elizabeth Kolbert, ‘The Last Trial.’ New Yorker, Feb 16 2015 52

great symbolic value of the trial of Oskar Gröning, a German working at Auschwitz who held a mostly administrative role.280 Gröning would previously have been considered untouchable by the courts, and he certainly was confident enough in this position to discuss his wartime activities in a BBC documentary in 2005. This trial received its share of criticism too, however, as it has been argued by German historian Thomas Weber that the criminal prosecution of a man who openly discussed his crimes, with great regret, actually silenced the remaining perpetrators and bystanders.281 It seems likely the majority of these people would not have spoken openly about their role in the Holocaust, but it is certain that any of them who were inclined to follow Gröning’s example would have been discouraged by his prosecution. In regards to the Munich trial, the American lawyer Stephen Paskey, who had served as the lead attorney for the U.S. government in Demjanjuk’s second deportation case, argued in the Kyiv Post that whatever good was done through convicting Demjanjuk was outweighed by the fact that a criminal trial discouraged the defendant from speaking openly about his wartime experience.282 Although a criminal trial does not typically encourage candidness on the part of the defendant, it should be noted that it was Demjanjuk’s complete refusal to acknowledge any aspect of his wartime membership of the Trawniki that helped to ensure that it was impossible to have a proper discussion about the nature and culpability of his collaboration in Munich.283 It is to his immense discredit that he did not acknowledge or address the Nebenkläger at any point during the trial.

Weber lamented in 2019 that a form of restorative justice has not been used in Germany instead of the recent criminal trials. He suggested that a model whereby perpetrators would be forced to meet with victims or their families, with a mediator present, could achieve the goals of Holocaust remembrance and education, while providing some satisfaction for victims, without ensuring the silence of the last living perpetrators.284 Such a restorative justice initiative would also have minimised the kind of sympathy for the defendant widely seen in the Demjanuk case. Wouters wrote that the legacy of the Nuremberg trials was that the crimes of the Third Reich, with their many thousands of perpetrators and collaborators, were never subjected to the kind of truth and reconciliation model of transitional justice that was seen in South Africa, for example.285 By the time of the Munich trial it was too late for a truth commission of the kind seen in South Africa, and for a nation with a widely- condemned legal record such as Germany, it is understandable that there was desire to do something

280 Bazyler, Holocaust, 151; Pavlos Andreadis-Papadimitriou, ‘Assistance in Mass Murder under Systems of Ill- Treatment: The Case of Oskar Gröning.’ Journal of International Criminal Justice 15, no.1 (2017), 174 281 Thomas Weber, ‘Time Appears to Have Run Out on the Last Nazi War Crimes Trials. But There Are Other Roads to Justice’. Time, April 3 2019 282 Stephen Paskey, ‘What John Demjanjuk could have taught us’, Kyiv Post, March 29, 2012 283 Peter Black, ‘Foot Soldiers of the Final Solution: The Trawniki Training Camp and Operation Reinhard.’ Holocaust and Genocide Studies 25, no.1 (2011), 64 284 Weber, ‘Time’ 285 Wouters, ‘Transitional’, 410 53

to redress this, even if largely symbolic. Whether a retributive or restorative justice mechanism was employed, and whether the Demjanjuk trial and its successors focused on correcting the legal record and securing a convictions, or on fostering Holocaust awareness and reconciliation, the long-overdue nature of these processes would always have characterised them and minimised their successes. The trial was not without didactic function, at least, as the way the historical record was brought into the courtroom in Munich meant that the trial at least served to recognise and legally canonise years of Holocaust research. The role of the Nebenkläger also meant that the victims were given a voice inside the courtroom. It remains to be seen if future trials of functional participators in mass murder may be able to employ historical research in a similar manner as that used by the prosecutors in Munich.

The trial and Vergangenheitsbewältigung

The German process of ‘coming-to-terms with the past’ was brought into the media spotlight, and given fresh impetus, by the Demjanjuk trial. As noted in Chapter 4, some observers believed that the primary purpose of the trial was as a display of Vergangenheitsbewältigung, an attempt to present the German mastery of the past to an international audience. Subsequently, what is typically commended as the paradigmatic example of a process of societal self-reckoning drew some criticism. For some the Demjanjuk trial and the celebration of its verdict was ‘coming-to-terms’ taken too far, and perhaps a new kind of Aufarbeitung; a symbolic and demonstrative conviction of an old man in the hope of displaying the German mastery of the past. The process of Vergangenheitsbewältigung¸ especially since reunification, was vital to creating the societal conditions whereby a trial such as Demjanjuk’s could take place was recognised. This was recognised by Buttner,286 as well as by psychologist Robert Wurms, former chairman of the Central Jewish Board of the Netherlands, who commented that the trial’s inception represented a “revolution of the new generation” of German legal professionals, which had as its impetus “a base in society and general feeling”.287 What impact the trial would in turn have on general feeling was less certain, and as demonstrated in the previous chapter, there was a great deal of disagreement among media and academic reactions as to whether the trial demonstrated a positive step in Holocaust consciousness or not. The importance of mass public participation in the process of overcoming a totalitarian past has been noted by Weinke,288 and

286 Buttner, ‘Epilogue’, 52 287 Goldman, ‘Demjanjuk’s Long Road’ 288 Weinke, ‘West Germany’, 26 54

the mass of interest and discussion that the trial stimulated can at least be considered beneficial to the ongoing development of ‘coming-to-terms’ with the Holocaust.

The trial contributed to a general trend of Vergangenheitsbewältigung whereby the number of individuals considered to have played a contributing and responsible part in the Holocaust is extended, and the importance of local collaboration to the outcome is emphasised. Although Holocaust academics have now largely fused the intentionalist and functionalist interpretations of Holocaust perpetration into a multi-level analysis of the causes of perpetration, Bilsky’s comment that the Munich verdict brought “the criminal law closer to the functional school” can hardly be disputed.289 Holocaust trials had traditionally helped to reinforce intentionalism through the emphasis on mens rea, base motives and a focus on Exzesstäter. The Munich verdict finally gave legal recognition to something that historical scholarship had long recognized: the criminality of the functional role played by death camp personnel such as Demjanjuk, and by extension all such death camp personnel. Subsequent trials enshrined this recognition in German statutory law. Although this legal change came too late for the vast majority of perpetrators, it was a necessary addition for the German record of coming-to-terms. The fruits born by the long process of Vergangenheitsbewältigung and the recognition of the functionalist nature of certain processes of the Holocaust were therefore brought to pass in Munich, and armed with a new legal truth, perhaps German society could further Vergangenheitsbewältigung in the wake of the 2011 verdict.

The Belgian sociologist Luc Huyse has used malaria as a metaphor to describe particular periods in a long-term process of collective memory development; whereby, as Wouters describes, “years of calm are replaced with a sudden, often unforeseen, period of strong tension”.290 The trials and mass public discussion stimulated by the Munich trial could be described as such a period of high fever, which had not been anticipated given the previously smooth institutionalisation of German Vergangenheitsbewältigung in the post-reunification era. Moreover, the fact that the Munich trial was the first high-profile trial of a Holocaust perpetrator held in the era of mass online communication helped to ensure that the metaphorical malaria was not confined to Germany, however, but prompted mass international interest not only from academics, but mainstream media and the public.

While the Munich trial helped contribute to a universal understanding of the narrative of Holocaust perpetration, the reaction to it emphasised that there are still separate understandings of the Holocaust and a fragmentation of Holocaust memory. Trials with this kind of historical significance are perhaps always likely to engender a wide spectrum of reactions, according to established political

289 Bilsky, ‘The Judge’, 150 290 Wouters, ‘Transitional’, 386 55

and cultural sentiments; in fact, political studies scholar Mark A Wolfgram wrote the Demjanjuk trial and its successors in Germany have shown that such trials, rather than bringing about “a more universal understanding of the past and its ‘true’ meaning”, unfortunately may “reinforce pre-existing resentments”.291 Ukrainian reactions to the trial illustrated that whatever the state of German Vergangenheitsbewältigung, other societies who were greatly affected by the Holocaust, and whose citizens played collaborative roles in its perpetration, have much further to go in their own journeys of addressing and discussing the crimes of the Third Reich. It is not only Germany that needs to come to terms with the Holocaust.

The further that the Holocaust recedes into historical distance, the more the nature and future of Vergangenheitsbewältigung comes into question. The political studies scholar Eric Lagenbacher wrote in 2010 that Germany had totally transformed the values and institutions which made the Holocaust possible, which was what the German philosopher and sociologist Theodore Adorno had previously defined as the very purpose of Vergangenheitsbewältigung.292 With the impending death of the last survivors of the generations who lived through the Third Reich, and after the conclusion of what Lagenbacher thought would be the final prosecution of a Nazi perpetrator in Demjanjuk, he suggested that the Nazi past would become “simply history” to German society.293 Subsequent trials have ensured that the Holocaust is not quite entirely a historical event, yet; but this moment is near.

The potential conclusion of Vergangenheitsbewältigung does not necessarily constitute its total success, however. The highly celebrated and even self-congratulatory nature of the success of German ‘coming-to-terms’ may even enable an erosion of Holocaust memory. Weinke argued that the Demjanjuk case illustrated that the eagerness to redress the failures of historical German societal and legal reckoning with the Holocaust had produced in the modern era “new coping strategies and perpetrator stereotypes”.294 It is apparent that there is a danger of producing caricatured versions of perpetrators and simplified understandings of their motives, and the processes by which they committed their crimes. Certainly, in some quarters there was a refusal to engage with the context and nature of Demjanjuk’s perpetration, and an insistence that monstrous crimes must necessarily have been committed by a monstrous man. As seen in the previous chapter, however, as the trail proceeded, unapologetic media coverage did seem to grow a bit more sophisticated – that is, less certain of Demjanjuk’s villainy.

291 Wolfgram, ‘Didactic’, 297 292 Lagenbacher, ‘Still’, 35 293 Lagenbacher, ‘Still’, 36-7 294 Weinke, ‘West Germany’, 54 56

Historian Geoff Eley has suggested that the finality of popular Holocaust memory in Germany has enabled “other forms of forgetting” with regards to victim groups and political processes,295 citing the rise in popularity in Germany of two political parties with xenophobic core messages, AFD and Pegida, stimulated largely by the million refugees accepted by Germany in 2015.296 Other scholars such as Berger have argued that given the institutionalisation of Holocaust memory in Germany it would be next to impossible for German society to suffer from any kind of “historical amnesia”.297 The Munich trial helped to show that future remembrance of the Holocaust is not set in stone or finalised. Although the trial of Demjanjuk was symptomatic of, and a contributor to, the development of a final stage in Vergangenheitsbewältigung as it has been understood up until now, the need to revitalise the prominence of Holocaust memorialisation and discussion shall remain, whatever this process may be called. Coming-to-terms with the Holocaust is one matter; the task then becomes to stay on terms.

The trial and closure

Having discussed the significance of the trial for the legal record and the development of Vergangenheitsbewältigung, it remains only to be asked if the trial achieved any kind of closure, and if so, for whom. Rashke wrote that for survivors and relatives of those murdered at Sobibor, represented in Munich by the Nebenkläger, the verdict finally brought “a measure of emotional satisfaction and peace”.298 Der Spiegel reported that the Nebenkläger were satisfied by the verdict and by the sense of community they had found, and that the conclusion of the trial allowed the co-plaintiffs to finally “put the past behind them”,299 sentiments echoed by the New York Times.300 Martin Haas, a member of the Nebenkläger who was interviewed by Dutch historian Selma Leydesdorff after the trial, said that he found the case and its conclusion to be “very satisfying, very right and done completely correctly”.301 Jewish organisations such as the Canadian Jewish Congress stated that the verdict brought a “degree of closure” to Holocaust survivors around the world,302 and the Simon Wiesenthal Centre, which had played an active role in bringing Demjanjuk to trial in Germany, announced that the Munich court had

295 Geoff Eley, ‘Contemporary Germany and Denial: Is ‘Nazism’ All there is to say?’ History Workshop Journal 84 (2017), 59 296 Eley, ‘Contemporary’, 46 297 Berger, The Holocaust, 160 298 Rashke, Useful Enemies, 534 299 Friedrichsen, Gisela. ‘It Was Clear What Happened: The Deeper Meaning of the Demjanjuk Verdict’. Der Spiegel, May 16, 2011 300 McFadden, ‘John Demjanjuk’ 301 Haas, Martin. Interview by Selma Leydesdorff, 02:54 302 ‘Demjanjuk convicted in Nazi death camp case’. CBC, May 12, 2011 57

finally “set the record straight”.303 Although there was some feeling in the Israeli media that Demjanjuk was not punished harshly enough,304 it was generally felt by victims and victims groups that the conviction itself was more important than ensuring Demjanjuk was given a particularly punitive sentence; 305 given Demjanjuk’s age, it was certain anyway that he would die in Germany, separate from his family. Although sometimes overlooked, the fact that the court in Munich was able to provide a measure of satisfaction and closure to the survivors and relatives of victims of Sobibor was perhaps its greatest achievement. After nearly seventy years, an individual had finally been convicted in a court of law for the mass murder that occurred there.

For journalists and academics who did not necessarily judge the trial by the same terms as victims of Sobibor and their relatives, Demjanjuk’s conviction came simply too late for it to provide any kind of satisfactory ending. US attorney Joel Greenberg described the case as a “great example of justice delayed being justice denied”,306 and in the German press Benjamin Schulz of Der Spiegel acknowledged that the verdict provided some sense of satisfaction, but too little and too late,307 a point echoed by journalist Heinrich Welfing, who described the conviction as “at best an epilogue of shameful history” and as coming too late to be truly meaningful.308 Rashke found that the trial left the case of Demjanjuk “legally, intellectually, and emotionally unresolved”: the verdict in Munich was more of a “pop and a fizzle” sort of ending.309

Priemel has commented that in transitional justice trials in general, give the mass scale of the crimes and victimhood, and the complexity of the historical narratives, both lawyers and historians ultimately have to accept that “closure is not possible”.310 Wittman argued that “closure is in fact not appropriate” when it comes to discussing the history of the Holocaust and of Holocaust memory, and that this was not the trial’s purpose.311 To think that the Munich trial failed in any regard because it was unable to provide meaningful closure to Holocaust memory and Holocaust prosecutions would surely be to hold it to unrealistic standards. It is in fact preferable that it would open new discussion and interest. The prosecutions that have followed in the wake of Demjanjuk’s conviction are welcome in that they have forced a fresh confrontation with the nation’s Nazi past, one that has garnered international attention, and in that they have stimulated renewed discussion about the Holocaust.

303 ‘Nazi guard Demjanjuk convicted but set free’ The Local, May 12, 2012 304 Segev, ‘Demjanjuk’s Five-year sentence’ 305 McFadden, ‘John Demjanjuk’ 306 Aaron Bandler, ‘Former Special Prosecutor Explains History of Nazi Cases at StandWithUS Legal Dinner’. Jewish Journal, April 5, 2019 307 Benjamin Schulz, ‘We don’t pursue Nazis, we pursue murderers’. Der Spiegel, February 21, 2014 308 Buttner, ‘epilogue’, 51 309 Rashke, Useful Enemies, 536 310 Priemel, ‘Consigning’, 581 311 Clibbon, ‘Demjanjuk Verdict’ 58

Despite this discussion, it must sadly be acknowledged that these trials have come, as Fulbrook described, far too late for any “serious legal reckoning with Nazi perpetrators or for caring adequately for the needs of those who had suffered at their hands”.312 Any measure of retributive justice achieved by these trials will always be inadequate, and tend more to the symbolic. The essential nature of the Munich’s trial legacy, including that of its successor trials, will always be that of too little, too late. The inability of recent prosecutions to provide closure to Holocaust memory is not one of their faults, however. Closure is not in fact what is required, but rather continuation.

312 Fulbrook, Reckonings, 337 59

Conclusion

The legal proceedings against John Demjanjuk were the longest and the most extraordinary of any legal proceedings against a Holocaust perpetrator. Spanning three decades and taking place in three continents, they saw highly contested confrontations with Holocaust memory and with processes of Holocaust justice. The verdict delivered in Munich in May 2011 was the closest the proceedings came to a conclusion, given that no appeal was held before his death and Demjanjuk therefore died as an innocent man under German criminal law. The defendant will perhaps continue to be more widely known for his earlier trial under a mistaken identity in Jerusalem, which was the subject of a recent Netflix documentary. The Munich trial was a far more significant entry into the record of prosecutions of Holocaust crimes, however, because of its lack of clear precedent in the history of German legal redress for Nazi crimes. The trial was extraordinary and highly unusual in terms of its legal processes, because of Demjanjuk’s deportation to Germany to stand trial in the first place, and foremost because of the court’s acceptance that proof of specific crimes was not necessary to convict the defendant for accessory to murder, and the court’s rejection of a putative necessity defence. The legal implications that such a judgement could have had earlier, if made even fifteen or twenty years earlier, would have been immense. As it was, the trial has only precipitated a handful of prosecutions, which have not created the same controversy and intense debate as Demjanjuk’s, partly because they are trials of Germans and not a Ukrainian Trawniki, and as such have not engendered the same confrontation with the nature of collaboration or coerced perpetration of the Holocaust. The virtually unprecedented nature of the trial’s legal processes and conclusions, and the manner in which it stimulated great public debate, as well as further criminal trials, mean that it has a prominent legacy as the most significant of the 21st century prosecutions of a Holocaust perpetrator.

The fact that the Munich Demjanjuk trial went ahead, and that a guilty verdict was found, can be attributed to the developments in Vergangenheitsbewältigung made in the preceding decades in Germany. The trial itself contributed to the furthering of a new stage in Vergangenheitsbewältigung, as the verdict represented a legal enshrinement of the validity of the functionalist interpretation of Holocaust perpetration, and the notion of widespread and low-level responsibility for Holocaust perpetration. If Demjanjuk was accessory to murder, it only stands to reason that so were many thousands of others. For some, even, the trial represented an over-extension of Vergangenheitsbewältigung, a politically motivated attempt to assuage the guilt of these decades of legal inaction and failure. It is viable to see Demjanjuk’s conviction both as a symbolic conviction of

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these many others, and hence as something to be celebrated, and as a damning reminder that these others were never brought to trial and lived their lives out in peace.

The primary purpose of Holocaust trials, and other trials of crimes of mass atrocity, has long been a subject of debate, and separate goals have competed for prominence in trials of Nazi crimes; that of providing retributive justice, and that of educating a wider public of the Holocaust and its processes. The establishment of didacticism as a key purpose of Holocaust trials can be traced back to the Nuremberg trials, which aimed to establish a historical account of the Holocaust; an account that was subsequently discredited and considered as contributing to a popular coping strategy, rather than an accurate and responsible collective memory of Holocaust perpetration. The first trial of Demjanjuk in Jerusalem was also a case where the interests of education and Holocaust memorialisation were too highly prioritised, resulting in a vulnerable and ultimately wrongful conviction.

Meanwhile, most other Holocaust trials, such as the Frankfurt Auschwitz trials, have been criticised for failing to educate a public audience as to the systematic nature of the crimes, or even the identity of the victims. Leora Bilsky, professor of law at Tel Aviv University, wrote that there is an academic consensus that law courts tend to produce “distorted and poor historical accounts of the causes of mass atrocity”, as the law is often unable to include and reflect upon the full complexity of a historical situation.313 The Munich Demjanjuk trial did its best to buck this trend, as historical expert testimony was brought into the courtroom as a key part of the prosecution’s argument, helping to illuminate the nature of low-level genocide perpetration and collaboration. The trial’s retributive aims would always be limited, given the defendant’s age, part of its ambition was that of a new interpretation and acceptance of the historical record in the courtroom. The trial was therefore significant for the way it brought a modern understanding of the Holocaust to bear on historical crimes, by which the defendant was held to a new standard; that of an era of Holocaust memory that accepts the notion of functional guilt and apportions blame to every actor within the system of mass-killing.

The divergent reactions to the trial made clear, however, that a functionalist-guided version of Holocaust memory, while currently prevalent, is far from universal or unshakable. Holocaust memory is fragmented, not monolithic, and while German society has generally benefited from a long period of Vergangenheitsbewältigung, other societies may continue to repeat an intentionalist view of

313 Leora Bilsky ‘The Judge and the Historian: Transational Holocaust Litigation as a New Model’ in History and Memory 24, no.2 (2012), 140 61

Holocaust perpetration; that of a small group of responsible figures and their largely unwilling followers. For many Ukrainian diaspora observers, the condemnation of Demjanjuk was unacceptable, signifying an attempt to shift blame for the Holocaust to unwilling Ukrainian conscripts. This constituted a revictimisation of the defendant and the Ukrainian diaspora as a whole. Other international observers either saw political motives or unfair processes, arguing that the trial failed to enquire as to the possibility that Demjanjuk was a victim as well as a perpetrator.

The rejection of a putative necessity defence was well-made in Munich, but it added another level of novelty and controversy to a trial that would already create plenty. It remains peculiar, in this author’s opinion, that a Trawniki and not a German was the first to be prosecuted without the need for evidence of specific crimes, and Demjanjuk’s previous notoriety likely played a large factor in his selection. The application of new legal arguments and standards to the case of Demjanjuk understandably raised accusations of unfairness, given the imbalance created in the historical record. In this author’s opinion Demjanjuk was convicted in Munich despite the acquittals of his superiors, and many others like them, and not because of them. While there is an undeniable distastefulness in the incongruity of German courts acquitting SS officers and subsequently convicting a Ukrainian Trawniki under their command, criticism is better directed at the former trials than the latter. It can only be said that for the victims of Sobibor and their relatives, there would have been no fairness in acquitting Demjanjuk on grounds of consistency.

The trial did indeed bring some measure of satisfaction and closure to victims of Sobibor. Other observers may prefer to focus on what might have been. The Demjanjuk trial saw a huge evolution in the interpretation of German law, one that brought academic and societal advancements in Holocaust memory into the courtroom and helped to institutionalise them further. As the significance of the case became more apparent, so the significance of the defendant diminished, as it became clear that many thousands of other perpetrators could once have taken his place. The ground-breaking success of the Munich trial is also damning; for all its immense legal and memorial importance, and its status as the most significant Holocaust trial in decades, it can only be a matter of regret that such a trials did not take place earlier, when the legal repercussions could have been so much greater.

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‘Ukrainians back Demjanjuk, convicted and stateless’. Fox News, May 27, 2011

‘Ukraine Willing to Admit Demjanjuk, Leader Says’. New York Times, July 31, 1993

Weber, Thomas. ‘Time Appears to Have Run Out on the Last Nazi War Crimes Trials. But There Are Other Roads to Justice’. Time, April 3, 2019

Ya’ar, Chana. ‘Demjanjuk convicted in Munich’. Israel National News, May 12, 2011

Survivor Testimonies

Bialowitz, Philip. Interview by Selma Leydesdorff - available at http://getuigenverhalen.nl/interview/overlevenden-interview-06-philip-bialowitz

Haas, Martin. Interview by Selma Leydesdorff - available at http://getuigenverhalen.nl/interview/nabestaanden-interview-12-martin-haas

Interview by Author

De Mildt, Dick. Interview with author. November 11, 2019. - available from author by request

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