Closing Argument Professor Dr. Cornelius Nestler in the Criminal Proceeding Against John Demjanjuk (Presented Before the Munich District Court on April 13, 2011)
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Closing Argument Professor Dr. Cornelius Nestler in the Criminal Proceeding against John Demjanjuk (Presented before the Munich District Court on April 13, 2011) Dear Presiding Judge, Ladies and Gentlemen Judges, Gentlemen Prosecutors, Gentlemen Defense Counsels, Gentlemen Colleagues Representing the Co- Plaintiffs, Dear Co-Plaintiffs I am presenting this closing argument as the co-plaintiffs’ moving statements are still resonating with us. I want to use this opportunity to note that this court’s presiding judge, and along with him the entire administration of the District Court, made this otherwise difficult situation easier for the co-plaintiffs to bear with their extraordinary prudence, care and friendliness. The co-plaintiffs were and continue to be very impressed. This criminal proceeding did not only grant them the opportunity, as provided by the law, to come forward as co-plaintiffs. This criminal proceeding was for them also a distinctive, a downright overwhelming experience of the respect which the German judiciary accords the Jewish victims of the Nazi rule. The co-plaintiffs want to thank you! The prosecution has set forth why, after the taking of evidence, there can be but one decision by the court – guilty. The reasoning presented by Dr. Lutz, the prosecutor, is convincing. Following the prosecution’s closing arguments, my colleagues Mssrs. Kleidermann, Langer, Laurent, Mendelsohn, and Schünemann presented important complementary questions and addressed them in detail. After such a long period of taking evidence, it is certain that every participant in the trial will be able to think of additional arguments relating to one or the other question. And one detail or the other might have to be accentuated differently; yet, where the core of the matter is concerned, the result is definite: conviction. I will therefore only briefly address two of the legal issues in this case, in relation to which my opinion differs from that of the prosecution. These differences of opinion – to be clear from the outset – do not controvert the charge of accessory to murder. As to the offense: The prosecution has requested a conviction on 15 counts of accessory to murder based upon its view that the murder of the persons in the trains from the Netherlands amounts to one offense for each train, i.e. 15 separate offenses. I believe that we are dealing with a single offense and therefore also with a charge of accessory to just one offense: the mass extermination in Sobibor in the period of time designated by the indictment. The dispute over the question whether mass extermination can be an offense in itself is an old one. In the Auschwitz trial before the district court of Frankfurt am Main, from 1963-1965, the famous prosecutor Fritz Bauer had requested interpreting the mass crime of the annihilation of the Jews in Auschwitz as one and the same unit of action, legally speaking. His motion failed before the district court and, subsequently, before the Federal Court of Justice which, in 1969, only regarded the killing of the victims in any one transport as one natural unit of action but not the mass extermination of all the Jews killed in the concentration camp1. In this decision, distinguishing an earlier decision of 22 March 19672, the Federal Court of Justice’s 2nd senate rejected a legal unit of action arguing that what was the subject of the indictment, the extermination of the Jews in Auschwitz, was “not a firmly demarcated, self-contained complex of action” for several reasons. What we are dealing with here in Munich, though, is to be considered a complex of action of this kind – especially and precisely if one applies the criteria used by the Federal Court of Justice in its Auschwitz decision to explain the divergence from the 1967 decision. Sobibor, unlike Auschwitz, was purely an extermination camp; a camp in which the SS and its helpers, following a uniform pattern, annihilated all human beings delivered to them. Only in exceptional cases and in deviation from this overall plan were small numbers of people selected to be slave workers. Accordingly, the courts that judged the responsibility of the SS men of Sobibor and Treblinka in the 1960s and ‘70s as well as the 2010 indictment against Samuel Kunz for having been a guard in Belzec presented before the Bonn district court, addressed one offense of mass extermination. The only thing setting our proceeding apart is that the Dutch lists make it possible for us to establish more concrete connections between specific victims and the specific time of an offense. This alone, however, does not justify an altogether different interpretation of the offense itself. To get to the heart of the issue: in Sobibor there was not a new decision with the arrival of every train from the Netherlands that these people would be murdered; instead, the murder of the people on every train was part of a continuous and unaltered plan of action for permanent mass extermination, and of that plan’s execution. Moreover, if one focuses only on the people in the trains from the Netherlands, one will leave out all those human beings that were delivered for extermination from the Generalgouvernement during the period of time in question – Mr. Schelvis accurately pointed out yesterday that these people, too, are to be considered, even though we know neither their exact number nor their identity. The legally correct assessment of this historical process as well as of the offense committed by the accused is: accessory to the murder of at least 27,900 human beings, committed in one unit of action. A second comment on the legal issues of the case: I argued in the trial that subsidiary to the principal charge of accessory to murder, a sentence on the basis of § 30 Abs. 2 StGB3 is also an option. I presented as a reason for this that the accused, being well aware of the nature of the operations of Sobibor, showed himself also willing to undertake those types of action that are to be considered acts of a perpetrator (such as pushing the victims into the gas chamber); this is to 1 BGH, decision 20/02/1969 – 2 StR 280/67 = BGH NJW 1969, 2056. 2 2 StR 279/66 = JZ 1967 643. 3 German Criminal Code 2 be regarded as an instance of “declaring oneself willing” in the sense of § 30 Abs. 2 StGB. The prosecution claims that the application of § 30 Abs. 2 StGB has a “communicative process” as a prerequisite, and that such a process cannot be proven in our case. This objection is not convincing. Anyone who was employed as a guard in Sobibor knew after a few days, after a few weeks at the latest, that the Trawniki were also used, at any given moment, for committing acts that unambiguously must be considered (co-)perpetratorship. Anyone who remained in Sobibor with full knowledge of such circumstances has by implication also expressed his willingness to perpetrate murder. That is all for the legal issues. It is standard for a closing argument to address questions of evidence and of legal issues. In this proceeding, though, there is more at stake; the legitimacy of the proceeding itself is also at issue. From the very first day, the guilt of the accused was not the only question that was at issue. It seemed that for many of the observers and commentators, it was not even important whether or not the accused is guilty. The legitimacy of the entire proceeding was called into question. Even if the accusation of guilt were to be upheld, it was asked: ● Is it legitimate to conduct a criminal proceeding against a guard whose participation in the annihilation of European Jews was at the lowest level of the hierarchy of the Operation Reinhard murderers? ● And especially as so many of the Germans who organized the Holocaust or who exercised command in the camps were not prosecuted at all or, at the most, got away with ridiculously low sentences, immediately followed by pardons, in the 1960s? ● Is the criminal proceeding still legitimate, even though the offense dates back so far, more than 60 years, and even though the accused is an old, no longer healthy man? ● And may one, after all this time, suddenly bring an indictment on the basis of a “legal novum” – as the Süddeutsche Zeitung, one of Germany’s foremost dailies, has called it – i.e., file a charge the like of which has never been seen: a charge that levels the accusation of being an accessory, without there being proof of concrete involvement in acts of killing committed against specific persons at a specific point in time? “The factory as offense”, as witness Thomas Walther termed it in an interview. ● And further: may the German judiciary, given that it was so lenient with the German perpetrators of the annihilation of the Jews, given that in many cases it barely investigated, did not indict, acquitted and in the case of conviction imposed only minor punishments – may this judiciary then pass sentence on someone, who at the time of the offense was a foreigner, someone whom the Germans recruited from a prisoner-of-war camp, where he himself was facing death? 3 ● And, even if one does find satisfactory answers to all of these objections: has this accused not already paid enough, having innocently spent seven and a half years in Israeli detainment as a collaborator of the SS, including several years in a death cell? These questions have beclouded the proceeding until this day. A conviction, too, will not silence them – unless it is accompanied by clear answers to these questions.