Closing Argument Professor Dr. Cornelius Nestler in the Criminal Proceeding Against John Demjanjuk (Presented Before the Munich District Court on April 13, 2011)

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?

● 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. Without these answers, a verdict that by the rules of criminal procedure is correct because it comprehensibly and beyond any doubt accounts for the guilt of the accused will continue to be vulnerable to the accusation of lacking widely understandable legitimacy. In this proceeding, it is therefore of critical importance that, beyond a guilty verdict, it can be argued successfully that the proceeding itself was legitimate. I will give a glimpse of the answer already at this point: the conviction will not only be right because it is necessitated by what the taking of evidence has yielded. The verdict will not only be right because it is consistent with our law; instead, it will be right also because bringing the accused to trial and finally to convict him was an imperative of justice. In delivering a conviction, this court will not only administer the law, it will achieve justice. The reasons: One of the first doubts about this criminal proceeding, raised repeatedly, simply answered itself. There were qualms pertaining to the state of health of the accused; qualms that the accused himself most certainly fostered with his behavior. I am calling to mind the video footage from the United States: first, a loudly groaning man in bed, presented to the media by his family – but then, only a few days later and evidently deeming himself unwatched, he got out of a car and crossed the street in Cleveland, all in a manner perfectly appropriate for his age. And then here, in court, the transformation of the moaning body on a stretcher, seemingly half dead, that we saw on the initial days of the trial, into the alert wheelchair guy in sunglasses, cracking jokes with the journalists. The doctors gave clear and authoritative answers to the health-related questions, the presiding judge in running the sessions showed consideration of the health needs of the accused – and looking back, one will be able to say that the accused and his counsels would have done much less harm to their credibility had they not exaggerated the health problems as exorbitantly; this being a pattern to be observed also in many other areas of this trial. The explanation as to why so much time passed until charges were filed in 2009, more than 65 years after the offense, is nowhere near as simple. But this explanation is important: only if one is familiar with the history of whether and how the perpetrators of Sobibor were prosecuted – a history that is anything but straightforward – can one understand the special circumstances of this proceeding against John Demjanjuk, circumstances that played a part in the afore-mentioned qualms about the legitimacy of the proceeding.

To initiate an investigation against an accused for a criminal offense, one first needs a punishable offense, second evidence and third the accused, as well as, finally, a prosecutor to take charge of the investigation. That is a truism, but I am engaging in this dissection because in this proceeding there are great gaps between the knowledge of the offense, the information pointing to the accused, the gathering of evidence and, finally, the step towards prosecution. I will start with the offense. Belzec, Sobibor, Treblinka – these three Operation Reinhard extermination camps alone, in little more than a year’s time, were responsible for approximately a quarter of the 6 million Jews killed in the Holocaust. Sobibor was the smallest of the three camps and the most clandestine. Himmler wanted to keep the mass extermination of the Jews in the Operation Reinhard camps secret. This failed in the case of Sobibor thanks to the courage of those who planned and executed the uprising of October 14, 1943. Using the greed of German SS man Josef Wolf, who was lured into one of the clothing huts to try on a leather coat belonging to one of the murdered victims, the first of the German SS men is killed with an axe, and others follow. But the revolt is detected prematurely, and an unorganized mass flight ensues; fences are climbed, mine fields crossed, while the German SS men and the Trawniki, the foreign guards, are firing away. Some 150 of the escapees manage to take cover in the surrounding forests, around 50 of them will live to see the end of the war, two of them, Thomas Blatt and Philip Bialowitz, have addressed us here in this courtroom, and Symcha Bialowitz, also a co-plaintiff in this trial, the older brother who repeatedly saved Philip’s life in Sobibor, would have come to Munich from Israel had he still been strong enough to do so. The insurgents in Sobibor wanted to survive, and it was from their despair that their courage was born – because those who came to Sobibor were awaited by certain death, and even being selected as a slave laborer to carry out the horrendous tasks in the camp was barely a respite – but quite literally the last respite. What equally motivated these insurgents, though, was their desire for posterity to learn of the monstrosities they had endured, of this mass murder organized like a factory operation whose only motive and objective was the extermination of Jews. For this reason, the two organizers of the uprising, Alexander Pecherski and Leon Feldhendler, instruct their fellow combatants immediately before the beginning of the revolt: “If you survive, give testimony of what has happened here. Inform the world about this place.” The insurgents have attained this goal, and one crucial step towards this goal was their participation in earlier criminal proceedings against the perpetrators of Sobibor – as is their testimony before this court. It all starts with Samuel Lerer and Estera Raab, both survivors of the October 14, 1943 uprising, chancing upon Erich Bauer, one of the German SS men of the Sobibor camp squad, in 1949 in Berlin. Bauer is arrested, and he is speedily sentenced to death in 1950, still under Allied law. The sentence was later commuted to a life prison term. And in the same year there is a criminal

proceeding against the German SS man Hubert Gomerski before the Frankfurt am Main district court, again using the survivors of the uprising as witnesses; Gomerski, too, receives a life prison sentence. Ever since then, the German judiciary has had knowledge of the offense. And it knows of the witnesses, the survivors. The latter can moreover name further SS men that were in Sobibor, and with Bauer and Gomerski and the SS man Johann Klier who was acquitted by the Frankfurt district court in 1950, there are even witnesses from among the German camp squad. Yet, there are no further investigations until the early 1960s (that is, almost 20 years after the offenses), until – and here the establishment of the Central Office for the Investigation of National Socialist Crimes in Ludwigsburg in 1958 plays a key part – charges are filed against 11 more of the Sobibor German SS men before the Hagen district court, and until a verdict is delivered in 1966. In Hagen, more light is shed on the facts of the case than had been in 1949 and 1950; the number of witnesses is significantly higher, as, contrary to 1949/50, the court succeeds in hearing a number of the survivors scattered all over the world. And with Bauer and Gomerski – who seem not quite to understand why they alone are expiating the Sobibor guilt while their former comrades have been enjoying life in unmolested freedom for almost two decades – further witnesses are available. These are witnesses that know the organizational processes and responsibilities of Sobibor much more closely than do the survivors; the reason for this is that the survivors experienced Sobibor in a state of permanent danger and agony of death, and they were familiar with it only from the perspective of slave laborers in Camp Two, who were largely screened off from the extermination process in Camp Three. The Hagen district court arrives at six convictions, but also at five acquittals. Whereas objectively their lives would not have been threatened had the German SS men refused to participate in the mass extermination in Sobibor, the court in 1966 believes the claim of the acquitted that they had done everything in their power to get away from Sobibor and that they were convinced – albeit incorrectly – that refusing to obey orders would place them in mortal danger, a situation of so-called putative necessity. Having an accused ‘John Demjanjuk’ is not yet a possibility in a German trial in the mid-1960s. Like most of the other former Trawniki that worked as guards in the camps of the Operation Reinhard and that are living in foreign countries, he is not on the radar of German law enforcement. These authorities are not undertaking a targeted search for the Trawniki, anyway. It is only by coincidence that every so often they realize that they are sitting across from a guard from one of the extermination camps. This was how things went with Samuel Kunz, who died not long ago, in November 2010, after the arraignment and before the beginning of his trial in the Bonn district court for his activities as a guard in the Belzec extermination

camp. In the 1960s and 1970s Kunz was repeatedly heard as a witness in other criminal proceedings; the authorities’ manner of handling him shows in an exemplary fashion which reaction the fact that someone had worked as a guard in an extermination camp provoked from the German law enforcement authorities in the 1960s and 1970s, namely no reaction at all – or the reaction of turning a blind eye to the issue. For instance, when Kunz was asked a question common for the beginning of a witness’ interrogation, the question where he had been and when, he reported that he had left Trawniki and arrived in Belzec, where he was a guard, in the winter of 1942 and that he had stayed there until the end. He had also become aware of what was going on in Belzec just shortly after his arrival. Follow-up question by the interrogator: What did you do then? Answer: Went on vacation for three weeks. Everything is on the table: the facts of the case, the mass murder in the extermination camp of Belzec, are well known. The offense of which Kunz can be accused – participating in the extermination of more than half a million Jewish persons in Belzec – he readily admits to, because he admits that his task was to make sure that no one was able to escape from his prospective extermination. But nothing happens. WHY NOT The first explanation, an argument that has been presented repeatedly since the investigation against Demjanjuk was made public, states that at that time, in the 1960s and later, the judiciary simply did not come to the same legal conclusions as the Ludwigsburg investigators Kirstin Goetze and Thomas Walther, who in 2008 evaluated the actions of the accused in Sobibor. The legal analysis of Goetze and Walther is: an extermination camp has the sole purpose of exterminating humans by way of murder; as a consequence every action that a guard had to undertake in an extermination camp is to be regarded as an act of aiding the extermination and he is thus to be regarded as an accessory to murder. Exemplifying the position of many, the Süddeutsche Zeitung magazine writes in April 2010: “Then (in 2008) Walther develops a theory that is to make it legally possible to convict a man even though one cannot prove that he has committed any individual offense – a legal novum in Germany…. [T]o date one has had to prove that Nazi perpetrators committed a concrete murder or were accessories thereto.” Is that why there were no investigations against guards before 2008? Because it is in 2008 when the legal re-analysis occurs, a kind of Lex Demjanjuk, the “creation of an exclusive one-person law”, as the defense once called it in the trial? This thesis is very, very wrong. The legal grounds for the indictment against Demjanjuk are not a legal novum. The only novelty is that now, in 2008, there is

finally a focus on one of the guards and his participation in the mass extermination. But that has nothing to do with the interpretation of the law; it has other reasons, to which I will revert later. The best piece of evidence indicating that our situation is not a legal novum is created by the Hagen district court in 1966; that court extensively deliberated on the question of how to evaluate the activities carried out by German SS men within the division-of-labor organization of the camp operation. Indeed, throughout the verdict every functional participation in the extermination process in Sobibor is regarded as an act of accessory to murder. On the subject of the guilt of those of the accused considered accessories, the verdict reads: “For none of these (9) accused, sufficient evidence has been produced to prove that in this camp he murdered Jews by his own hand or that he arranged on his own initiative for Jews to be murdered there. However, in the places where they were employed in the organization of the camp, they all by way of their functional participation (emphasis added) causally and in immediate proximity to the offense played a facilitating role in making the mass murder of the Jews possible.” (p. 378) The instances of facilitating participation that are listed are, among others, actions such as:

● with respect to the accused Wolf: employment at the ramp, supervision of hair-cutting, fast sorting of pieces of luggage. Reasons: Had the newcomers encountered piles of luggage, their deception could not have been successful (p. 378) supervision of wood-chopping in the forest “for the camp kitchen, for other furnaces and for burning bodies” (p. 379)

● with respect to the accused Ittner: overseeing personnel – the lists refer to “payment, correspondence, accounting or the like” (p. 379) ● with respect to the accused Dubois: retrieving meals and material for camp construction and fuel for camp vehicles, supervision of the weapons chamber – “in light of the executions by gunshot that were permanently conducted in the camp and due to the armed guards that secured the purpose of the camp a function immediately co-causal for the mass murders” (p. 380) ● with respect to the accused Lambert: executing construction tasks on the gas chamber (p. 380) ● with respect to the accused Lachmann, “that as the leader of the Ukrainian guard company he, according to the orders of the camp leadership, deployed these men to guard the camp, to watch over and drive on the arriving transports and to watch over individual commandos. Here, too” – the court states – “his immediately extermination-facilitating function is manifest.” (p. 380) 8

There is not much to add to this. If even payroll accounting is regarded as functional participation in mass murder, then how is one to judge the behavior of a guard who, from the ramp to the gassing, ensures that the extermination will succeed? If disposing of the bodies is judged to be accessory – as did the Düsseldorf district court in the Treblinka proceeding when considering Otto Horn, who later received public attention as a witness against Demjanjuk in the Israeli proceeding, then aiding in murder by, at a minimum, guarding, most certainly is. And if the deployment order for guard activities – as the Hagen district court literally states – is an act of “manifest facilitation of extermination”, then the execution of that order, guarding the camp and its victims, i.e. the act for which Demjanjuk is accused in Munich, is under all circumstances to be regarded as accessory to murder. All this is absolutely understood in all other areas of criminal law; I will give a simple example: If someone is hunting me in my office with a knife in order to stab me, and if someone else is holding the door shut to stop me from escaping, then the one who is holding the door shut is punishable as an accessory, at a minimum – when teaching law at university, we expect all students, even those who have yet to complete the first semester, to reach this conclusion. Now, if everyone who “was a cog in the wheel of the murder machinery” (also a quote from the arguments of the verdict of the Hagen district court, p. 381f.) is punishable for accessory to murder, if according to perfectly normal standards of criminal law every guard in a camp where systematic murder took place is punishable as an accessory, then why between 1966 and 2008 were there no investigations against Samuel Kunz and other Trawniki? For this, there are a number of plausible explanations: Ludwigsburg was working to capacity in the 1960s and 1970s just by investigating higher-ranking Nazi criminals. Moreover, while those running the investigations in the proceedings on Sobibor and Treblinka and especially on the training camp Trawniki were aware of the role of the Trawniki in the extermination camps, the historical significance of the Trawniki for the extermination of the Jews and specifically as part of the Operation Reinhard became properly clear only much later. Almost all of the pertinent historical studies were produced only in the 1990s or even in the past decade (such as the studies by Peter Black, David Rich and Dieter Pohl). Plus, the names and whereabouts of the Trawniki were unknown; this was partly the case because in Germany no one had searched for them, but it was also the result of there being no systematic knowledge about the many proceedings and verdicts that had been conducted against Trawniki in the Soviet Union. And the few witnesses, the survivors of Sobibor and Treblinka, now live all over the world. What is more, though, in the memory of the survivors the “Ukrainians” – as the Trawniki were called among the doomed – were a completely anonymous group, despite being remembered as extremely brutal.

The life of the slave laborers was directed at surviving in the work sections of the camps. There, it was the German SS men who made the decisions and exercised the arbitrariness that could put an end to life at any moment. While the “Ukrainians” were the willing executioners, their individuality was inconsequential for the fight for survival; their individuality was not what was remembered. This is the reason why in the survivors’ memories the Trawniki appear again and again as “the Ukrainians”, but hardly ever as persons with names. Yesterday, Mr. Schelvis vividly accounted for this when relating his own experience. Another reason, and probably the most important reason the guards systematically eluded the attention of the German prosecutors, is the demarcation between perpetrators and participants that was predominant in the jurisprudence of the 1960s and 1970s. This demarcation established a hierarchy among the prosecutable and to-be-prosecuted perpetrators of the extermination of the Jews, which, in turn, left little room for the Trawniki. In 1949, in the first of the Sobibor proceedings against Bauer before the Berlin district court, the legal analysis is undertaken according to Allied law, and it is still brief and simple: Participation in the annihilation of thousands of innocent people under the most gruesome of circumstances is a crime against humanity. The Federal Republic of Germany decided early on that it would not make use of the international legal norm of a crime against humanity in its prosecution of Nazi crimes. The explanation for this political decision lies somewhere between two reasons: on the one hand, there is the formal reason that applying the international legal norm would violate the ex post facto principle (the principle that new laws must not be retroactively applied) – an argument that was quite obviously and on the basis of very good reasons rejected in the Nuremberg Trials – and on the other, there is the catchphrase of “victors’ justice” in Nuremberg. This catchphrase was further nourished by the wrong term Trial of the War Criminals. The extermination of the Jews in the camps was not a war crime in the strict sense. Similarly, and contrary to what has been claimed repeatedly by the press, the proceeding against Demjanjuk is not a trial against a war criminal, but a proceeding dealing with mass murder that took place apart from acts of war. As a general rule, to which the proceeding against Bauer was an exception, the crimes of the Holocaust were thus prosecuted and still are in this proceeding today prosecuted not according to international criminal law but instead following the specifications of the criminal code, in the form that was valid at the time of Nazi power. This attempt at using regular criminal law to grasp crimes that were ordered by the state has been criticized frequently; for the evaluation of the actions of the German SS squad of Sobibor, though, this did not initially create any problems, as the first proceeding against Gomerski shows. Gomerski was indicted and convicted before the Frankfurt district court

in 1950 as a co-perpetrator of murder by way of the mass extermination of an unnamed number of human beings. In 1966, before the Hagen district court, everything suddenly became much more complicated. The question of who is a perpetrator is now answered first on the level of political responsibility. For instance, the verdict states at the beginning of the legal reasoning (p. 366): “The main perpetrators of the extermination of the Jews in the Generalgouvernement were primarily Hitler, Himmler, Göring, Heydrich and Globocnik.” This approach may be correct: The persons named are indirect perpetrators – as the Landgericht Hagen terms it – or, in modern terminology: alongside the direct perpetrators in the camps they have control of the crime by way of leadership of the organization (‘Tatherrschaft durch Organisationsherrschaft’). But this vantage point – the murder is the deed of Hitler and of other heads of the Nazi state – is used by the courts of the 1960s and 1970s for another and highly consequential step. For the Frankfurt district court in the 1950 proceeding against Gomerski it had still been an absolute self-evident assumption that 10 to 15 German SS men who, using the help of about 100 guardsmen, to murder hundreds of thousands, sometimes more than three thousand human beings in just one day, are perpetrators of murder. Now, though, in the 1960s and 1970s, the common vantage point – the extermination of the Jews is the deed of Hitler – is employed to the extent that even those in the camps who personally carry out murder can be nothing more than Hitler’s helpers. Anyone who did not make Hitler’s “criminal will” his own was nothing but an accessory. Conversely: To be a perpetrator, the mass murderer has to be – as the Hagen district court phrased it – “another like-minded person”, i.e. be of the same mindset as Hitler, Himmler and Globocnik. It was the judges of the Federal Court of Justice with their so-called Staschinski decision of October 19, 1962 that deliberately kicked the door wide open for the jurisprudence of the 1960s and 1970s to turn perpetrators of murder, who would compulsorily be facing life-long incarceration, into mere aides. In the case of the Hagen district court’s decision, the consequence of this about-turn in jurisprudence is that all German SS men save for one (Frenzel) were convicted merely as accessories to mass murder. Another example: in the case of the Auschwitz decision, the result is that even Robert Mulka, second in command of the camp, was convicted not as a perpetrator but only as an accessory. This legal practice is continued in the retrial of Gomerski before the Frankfurt Landgericht in 1977. Even Gomerski, feared by the Jewish slave workers of Sobibor for his indescribable abusiveness and cruelty, called “the terror of the camp” by the Hagen district court in 1966 (p. 376), is classified as someone who possibly in the end acted only reluctantly and purely out of obedience – he was nothing but an accessory.

The ideological direction of this legal practice is apparent: Not only does it pave the way for the KGB defector Staschinski at the height of the Cold War; at the same time it ascribes exclusive perpetratorship to any totalitarian regime, in the present or the past, while the executors are merely given the role of accessories. If, however, even the German SS man who directed the mass extermination on site in the camps, can only have been an accessory – as a general rule and because he was simply following orders – then a hierarchy of murder is produced in which there is hardly any room for the so-called “fremdvölkisch” (foreign-origined) members of the guard squads. This definitional-deflation of mass extermination to accessory is the path leading the perpetrators away from incarceration for life, which would be compulsory for a murder conviction. At the same time, though, this path leads to a concentration of all investigations on the so-called excessive acts, i.e. offenses that require more than only participation in mass murder. This is the case because anyone who has, in addition to having participated in mass murder, committed excessive acts comes into consideration as a perpetrator. This leads to the possibility of a life sentence. It also results in a refocusing of the concentration of the criminal investigations and trials from mass extermination (which is predominantly only evaluated as an accessory offense) towards direct and specific acts of killing. The Gomerski proceeding demonstrated this well: whereas the Frankfurt district court in 1950, convicting Gomerski as a perpetrator of mass murder, needed but a few months of trial and 30 pages to outline the arguments of the verdict, the retrial in 1977 turned into a three-and-a-half-year proceeding with several hundred pages of arguments that most notably address the excessive acts of the accused. It is safe to assume that this focus on the individual offense of the Nazi perpetrator (who is not just a follower but an excess perpetrator) is the source of the myth that for decades was predominant in Ludwigsburg: of an assumption that is simply wrong in the context of legal rules, namely that to initiate an investigation for participation in murder one necessarily and in every historical situation needs evidence of a direct and specific act of killing.4

4 What would be the most natural thing from a legal perspective was not recognized for a long time. Historically and in terms of social psychology – but not in terms of legal rules – this is easy to explain: if the standard that according to the definition of an accessory should long have been applied to participation in the Nazi crimes had been used in the 1960s and ‘70s, tens of thousands of German citizens would have had to face criminal proceedings on the grounds of the suspicion that they were accessories to murder. There would have had to be proceedings against all those who objectively participated in the mass extermination and knew thereof, i.e. for instance all those who were involved in deportations, from the organizers to the train personnel, anyone who was involved in the operation of a concentration camp, all those participating in ghetto liquidations, etc. 12

The history of the accused Demjanjuk, however, initially takes a completely different route. His personal history does not yet have any points of contact with the history of the German judiciary’s prosecution of Nazi crimes when in the 1960s the “accessory junction” is passed for the German SS perpetrators with the Staschinski decision. It is only decades later that the history of the prosecution of Nazi crimes bears upon the treatment of persons like Demjanjuk. As long as it was not known that John Demjanjuk had been a guard in Sobibor there could of course not be a criminal proceeding for his participation in mass murder. And this information only becomes available in the 1970s, when the U.S. Department of Justice intensely searches for persons, who upon entry to the U.S. concealed their participation in the persecution of the Jews – and comes upon Demjanjuk. In the course of the investigations that are conducted by the Office of Special Investigations with the objective of denaturalization and deportation, a contradictory pattern of evidence takes shape: There are the documents that show that Demjanjuk was in Sobibor, such as his camp ID card and the transfer lists to Sobibor and Flossenbürg; later there will additionally be testimony by Daniltchenko who remembers Demjanjuk to have been in Sobibor. But there are also the testimonies of a number of Treblinka survivors – here, too, an uprising had saved the lives of a few hundred of the people for whom certain death had been planned – who identify John Demjanjuk as Ivan the Terrible of Treblinka. The rest of the story is well known, not least thanks to the tireless efforts of the defense here in Munich to reap benefits for this proceeding from the old U.S. proceedings and the trial in Israel: The Israeli prosecuting authority does not seek prosecution of Demjanjuk’s activities as a guard in Sobibor, but it accuses Ivan the Terrible of Treblinka – the extradition to Israel, the indictment and the first-level conviction are all founded on this suspicion. The accusation turns out to be false, the attempts of the prosecution at the stage of appeals to convert the charge to an accusation for his activities as a guard in Sobibor fail, Demjanjuk is acquitted, he returns to the U.S. and his citizenship is reinstated.

The impression that the charge of accessory can only be sustained for Hitler’s foot soldiers, the handymen of extermination, i.e. only for activities in the extermination camps, is not correct (this is an interpretation that the witness Thomas Walther himself initially presented in interviews). Anyone who was a guard in a concentration camp, in which murdering the inmates was part of everyday life, he, too, objectively was complicit in making these murders possible through his activities as a guard. And if he was aware that murder was part of everyday business, as was the case in every instance where there was extermination through labor, then this is sufficient for the subjective side, as the intentional element of premeditation, the aspect of “accepting by endorsement” (in German: billigend in Kauf nehmen) the offenses, can be assumed. This describes anyone who was in Auschwitz as a guard, but also any guard who was active in Flossenbürg, an institution of mass murder; as a consequence, there would have to be investigations against the witness Karp Nagorny, as well as against the accused, also for their time as guards in Flossenbürg, from October 1943 to late 1944. 13

It is most likely that the Israeli proceeding was followed in Ludwigsburg – albeit only through the media. Thereby, the following is also known: No one in the Israeli proceedings, save of course for the defense, had the least bit of doubt that John Demjanjuk was trained in Trawniki to be a helper of the SS in Operation Reinhard, that he was in Flossenbürg, and that before that, he was in Sobibor. And anyone who had any kind of doubt at the beginning was relieved of this doubt by Demjanjuk’s interrogation during the trial in Israel: His attempt at constructing an alibi of where he had been from the summer of 1942 to the spring of 1945 was a lousy and contradictory pack of lies which the liar himself was least apt at selling. Using the words of Gitta Sereny, the famous British journalist, who observed the trial: “the key problem of the case was always Demjanjuk himself”. It was thus in 1993 at the latest, with the decision of the Israeli Supreme Court, that the facts of the case indicted here in Munich in 2009 had been fully brought to light. It was a known fact that Demjanjuk had been a guard in Sobibor, and with the ID card, the transfer lists and with Daniltchenko’s testimonies there was clear evidence. In the Israeli decisions, one could read all of this in detail. And that is also where anyone who chose to do so could find a clear description of what a Trawniki’s purpose was: (quoting the Israeli Supreme Court verdict, No. 460) …[f]or the physical annihilation of the Jews in the Generalgouvernement, but also of the Jews from other European countries; it was for this goal alone that the Trawniki unit was established (end of quote). A former Trawniki, Paul Flesser, already had described it to the point in 1981 when he was interrogated as a witness in an American proceeding in Stuttgart. When asked what the Trawniki camp was all about, he answers: It was “A camp for… a training camp”. Question: Training for what? Answer: “I don’t know. For…for murdering Jews.” The Israeli Supreme Court as the court of appeals thus arrives at the conclusion that Demjanjuk could have been culpable as an accessory even on the grounds of having been one of the Trawniki – men; I will paraphrase the court’s reasoning: It is true that not every membership in an organization responsible for crimes constitutes an accessory offense. If, however, an organization such as the Trawniki is “purely and simply a murder support unit”, then membership in this unit implies being an accessory to murder (462), and this holds also for the specific case of employment in Sobibor (465). It is here that one could have already read it in 1993 if one was so inclined: membership in a guard squad in an extermination camp is accessory to murder. The prosecutors of the Central Office in Ludwigsburg certainly did follow the proceeding in Israel, as the file for “Demjanjuk, John” shows. There is even a dispute with the public prosecutor’s office in Dortmund over possible

jurisdiction for further investigations, but an agreement is quickly reached – there is “no concrete incriminating evidence” (sheets 18, 20). An entry from 2001 reads: “As no new evidence against D. has turned up in Ludwigsburg, no preliminary investigation is to be initiated against him.” (sheet 22). In 1993/94, Ludwigsburg cannot yet be seriously reproached for this position. The trial in Israel had been a disaster, Demjanjuk was back in the United States – at that point, entering into an investigation in Germany was not the obvious thing to do. In the meantime, however, the Office of Special Investigations in the U.S. had started anew. It is true that in 1993 the American courts had reproached the Justice Department for having made grave mistakes in the run-up to the Israeli proceeding; the Department of Justice was to have held back evidence indicating that John Demjanjuk was not Ivan the Terrible of Treblinka. But contrary to what the defense here in Munich has suggested repeatedly, the American courts – in spite of these mistakes – had expressly not ruled out a new proceeding for Demjanjuk’s time as an SS guard and specifically for Sobibor. The Office of Special Investigations proceedings aimed at denaturalization were thus reinitiated in the 1990s; as part of a new strategy - historians were involved, experts for the Nazi crimes in Eastern Europe, and now, after the fall of the Iron Curtain, all material, including, most notably the documents from the archives of the former Soviet Union, were systematically assembled and put into order. This was not a strategy that specifically targeted John Demjanjuk; instead the proceeding against John Demjanjuk was but one of many to benefit from this strategy. Its direct results in the case of John Demjanjuk are the so-called Sydnor report and the subsequent Matia decision of 2002. They are the result of an entirely new and above all of a very systematic approach to the existing evidence. Just one example: for the Israeli proceeding, four ID cards had been uncovered, and the defense’s claim of forgery, as ludicrous as it may already have been, could perhaps find an audience; but in 2002 there were more than 40 ID cards, many corresponding personnel sheets, and hundreds of interrogations that confirm the implications of the documents. A much broader pool of evidence had been established since the Israeli trial, a pool of evidence that then also became the foundation of this proceeding and that has confronted us not only with a file of over 100 ring binders but also with a database containing approximately 70,000 documents. Ludwigsburg was by all means aware of this development, as the Office of Special Investigations had contacted the Central Office in 2001 with a request for documents to be used in the proceeding against Demjanjuk. And Ludwigsburg received a memorandum from the German Federal Archive, housed in the same building in Ludwigsburg, in which the new state of the evidence against Demjanjuk was summarized succinctly. The reaction in Ludwigsburg was a hand-written comment:

“1) Place this copy with the file, reference number. 2) Put away again.” The only thing still missing to initiate investigations – more concretely, the only thing missing for Ludwigsburg to become active after the Matia decision of 2002 and the clearly new amount of evidence associated therewith was for Ludwigsburg to call back to mind the basic legal principles of accessory, according to which acting as a guard in an extermination camp is to be regarded as accessory to murder. To this day, it is hard for me to believe that when meeting with the heads of Ludwigsburg in the years to follow, the representatives of the Office of Special Investigations were able to present their lists of dozens of persons suspected of having participated in Nazi crimes, some of whom, such as Jack Reimer, had even confessed unambiguously – it is hard for me to believe that the Americans could then point to their extensive findings, their Trawniki database, and that there would only ever be one answer from Ludwigsburg: the fact that one of “your American” Nazi men was a guard in a camp is not enough according to German law; we have to present evidence of a concrete instance of participation in an act of killing. This behavior of legally flying blind – I am calling to mind the sections cited above from the Hagen district court’s 1966 verdict on accessory by way of functional participation – did not have any legal basis, but rather was a stereotypical response: we had never investigated guards, unless there were individual offenses that could be described concretely. But legally flying blind may also have been such an easy choice because it fit so well with the political requirements. The German weekly DIE ZEIT reports how in 2004 then-foreign minister Joschka Fischer rejected the request for the Federal Republic to accept Bronislaw Hajda, a man who was, like Demjanjuk, a Trawniki and who allegedly participated in a massacre against Jews in the Treblinka labor camp. Fischer’s rejection came with the following reason: Hajda was never a German citizen, his case is thus simply not within German jurisdiction. This reason is utterly short-winded: if among the victims of Treblinka there had been but a single Jew of German citizenship, the requirements for a German court to be responsible would already have been met. For further points on why German courts have jurisdiction over foreign Trawniki-men I refer to the closing argument of the prosecution, presented by Dr. Lutz. There are many more examples like Hajda’s. And Eli Rosenbaum, Director of the Office of Special Investigations, has time and again complained bitterly: Germany is “tenaciously blocking” all American efforts at “sending Nazi criminals back to Europe”. And by ‘tenaciously’ he meant for a period of more than a quarter century. Was there then – this impression is difficult to reject – a tacit political coalition between Ludwigsburg and the German foreign ministry; a coalition in which 16

Ludwigsburg was clinging to a comfortable but incorrect legal analysis – or at least was making no effort to correct the latter, as for decades the Federal Government was sending signals of having no desire whatsoever to receive the presumed Nazi criminals on German soil? The defense, which has obviously followed the media coverage of the Demjanjuk proceeding, ignores these findings. The defense has claimed repeatedly that Germany wants to use the proceeding against Demjanjuk to distract attention from Germany’s guilt. This accusation is absurd in any case: by way of this trial the crimes committed in Sobibor are being discussed in the public forum, and what is addressed first and foremost is always the overriding, paramount and unquestionable guilt of the Germans for the annihilation of the Jews. There is no way to divert attention away from this. And the defense’s accusation ignores that the prosecution and the court are subject to Germany’s ‘principle of legality’ (the principle that the prosecution must seek an indictment for all crimes) – in this courtroom, there is no ‘Germany’ that could decide whether or not to bring forward a charge; rather, the question that is of sole importance for the prosecution and the court in order to indict and start the trial is whether or not there is probable cause. But the accusation that Germany wants to use the Demjanjuk proceeding to distract attention from its guilt is also completely wrong because precisely the opposite is true: what Germany, including the Schröder/Fischer administration, did not want for a long period of time was to have the proceedings against the foreign Nazi criminals come before German courts. In the wake of this policy, prosecutor’s offices and courts in Germany did in fact also conduct proceedings against Nazi criminals who were foreigners at the time of an offense before 1945, albeit only in cases where these persons were living in Germany at the time of prosecution. In the end, the indictment against Demjanjuk is thus due to a coincidence and to someone who thinks outside of the box. It was by coincidence that the witness Thomas Walther – he gave an account of this at the beginning of this trial – made the online discovery of an American court decision that presented a comprehensive argument that Demjanjuk was in Sobibor. The infinite astonishment on the part of Walther, a judge delegated to the Central Office in Ludwigsburg, to find on the internet what would absolutely have to be known in his office, and the train of thought thereby set into motion – that in an extermination camp there is no need to prove a concrete act of killing, that a German court’s jurisdiction is established sufficiently if there are German citizens among the victims, and moreover the insight that the Trawniki are to be treated as German office-bearers: this astonishment was the beginning of investigations that were finally also initiated in Germany, investigations that have brought us to this point today. What is happening now is the natural course of action, the course that failed to be taken for half a century. Investigations were initiated against Samuel Kunz as a guard in Belzec. Equally against Karp

Nagorny, tracked down by Thomas Walther in Landshut, where Nagorny, formerly a Trawniki and a guard in Treblinka and Flossenbürg, had been living unmolested for more than 60 years. This excursion into the history of the prosecution of Nazi offenses and of the proceeding against Demjanjuk was to explain why for such a long time there was no investigation, and then very late suddenly there was an investigation against Demjanjuk. An excursion into legal history does not explain, of course, why it is legitimate, why it is even imperative to conduct a criminal proceeding against – and in the end to convict for his guilt – the now old man, after all this time and after all the more or less known omissions and mistakes made in prosecuting Nazi criminals. Before presenting the answer to this question, I will return to another objection, to an issue that the defense has inflated into virtually the most significant issue of this criminal proceeding: Is the proceeding illegitimate because the accused was already and unrightfully imprisoned in Israel for seven and a half years for his alleged participation in the crimes of the SS. From a legal perspective, the answer is simple and the court has repeated this answer in its decisions on the proceedings, the prosecution has expounded it in the closing argument. First, there is no prohibition of a second prosecution with respect to Israeli criminal proceedings. Second, the accusation in Israel was a different one, namely of having raged in Treblinka as Ivan the Terrible, and not for activity as a guard in Sobibor. And third, the imprisonment unrightfully undergone in Israel can and will be considered when determining the punishment. But discomfort is expressed, over and over, at bringing the accused to court a second time. However, there is no reason for this discomfort. That the accused is on trial for the second time is quite simply the consequence of his lifetime delusion, the lie of not having had a part in the SS’s extermination of the Jews. And with this lie, the accused was very successful in the end: The lie of not having belonged to the Trawniki or the SS earned him immigration to the United States in 1952 as well as a quarter century of unmolested life. His lies about Sobibor, too, helped him multiple times. Had he admitted to Sobibor, Israel probably would not have demanded his extradition. And in 1985 Demjanjuk was on a deportation list for the former Soviet Union, and he probably would have suffered the same fate as Fedorenko. Fedorenko was a Trawniki who had been a guard in Treblinka and whose denaturalization was pursued in the U.S. parallel to Demjanjuk’s. Fedorenko was deported to the Soviet Union in December 1984 and in 1986 was sentenced to death and executed in the Ukraine for having participated in mass executions. With his lie, Demjanjuk saved himself from this fate. Or let us assume that Demjanjuk had admitted only at a later point in his criminal proceeding in Israel that he had been in Sobibor. One can only speculate what end the proceeding would have taken, but modifying the

extradition procedure to fit the new accusation would have been possible, and the result would have been a long prison sentence in an Israeli prison at the least. Compassion for such a successful liar, a liar who was finally caught by the truth after all and who as a consequence has to be on trial a second time – for this, there is no cause. I will now address the qualms initially mentioned – lengthy amount of time between offense and prosecution, age of the accused, asymmetrical practice of prosecuting Nazi offenses on the part of the German judiciary. The lengthy amount of time: that the legitimate desire for a legal reaction to an offense will decrease with time is reflected not only in the criminal law’s statute of limitations provisions, but is expressed also as a general feeling in society – time heals all wounds, in popular parlance. But this is not always the case, not with every offense. There are offenses that challenge our self-perception, the foundations of our coexistence and of human life. In international criminal law, these offenses are denominated crimes against humanity. The mass murder in Sobibor, in which the accused took part, is a crime of this kind. That murder, as a matter of principle, does not have a statute of limitations in Germany is the result of many a debate in this country, the most important one probably being that of 1965. The impending expiry of the period of limitation for Nazi crimes, especially for the extermination of the Jews and for other crimes against humanity, presented the occasion for the debate – it was due to a political compromise that the rule then established pertains to any murder. In the 1965 limitations debate in the German federal parliament, the Bundestag, parliamentarian Adolf Arndt got to the heart of the issue: “What is important, here, is for us not to turn our backs to the mountains of guilt and harm that are behind us.” What is at issue here and today is very much the same: the offense in which the accused has participated is so great, so serious, so unique, so monstrous that with respect to him, too, criminal law cannot simply turn the page and put an old case to rest; here, age does not matter, the lapse of time does not matter, and the mistakes and omissions of the past do not matter either. In the face of the guilt with which the accused has burdened himself all these aspects become negligible. Therefore, it is not only correct that a prosecutor’s office that would not have indicted, a court that would not have tried, would simply have perverted the course of justice – as my colleague attorney Manuel Mayer accurately pointed out. Much more than that, arguments such as “Let bygones be bygones” – because so much time has passed, because the accused is so old, because others were not put on trial either – arguments of this kind are intolerable when considering the offense at issue: Can there be “Bygones!” when someone is accused of having for six months spent his life murdering 27,900 human beings – which, evenly spread over those six months, comes out to 160 murdered Jews per day? A society as Germany, having in mind the years

of Nazi-rule, that in 1949 gave itself as the first sentence of its constitution that “Human dignity shall be inviolable” – can and may this society refrain from determining all and any responsibility for this offense, using all the means at its disposal? A definite No is the answer. And in this case the means for identifying the responsibility is this criminal proceeding. Refraining from this identification of the guilt of every single participant would imply a rupture with our society’s self-perception. Moreover, were this society to refrain from investigating this culpability, this would be a renewed violation of the victims as well as of the co- plaintiffs in this proceeding who are entitled to having recorded as injustice, not as fate, what they and their kin suffered. Many of us try to find an image for the enormity of this offense, to find something that will make it graspable in any possible way, and we cannot succeed; we only ever find approximations. In the 1960s, the magazine “Stern” presented a famous photograph, printed across two pages. My client Rudi Cortissos handed it to me, minutes after he had told me about his mother who was murdered in Sobibor. This photograph is one of the extremely few that exist from Treblinka, and it shows a larger group of naked women and children, herded together, on their way to the gas chamber. Maybe you know the picture and have turned away, shuddering. If you look at the photograph more closely, which I find difficult, then each of the victims has a face and a body, is not just one of 100 or 3,000 or even 1,5 million murdered persons; they are all individual human beings, huddled together in a photographed section, and we know that the picture could be expanded past that section almost endlessly. And their nakedness makes these people inconceivably vulnerable; it shows that they are doomed, utterly exposed shortly before their cruel death. The accused saw them, the people from the Netherlands who got off the trains from Westerbork for the Arbeitseinsatz in the East, to be deployed to work, as the SS had made them believe, he saw faces full of hope, children anticipating the new, the fear in the eyes of the skeptics. The accused saw them, the people from the Polish ghettoes, who after years of SS rule sensed or even knew what was awaiting them and who had to be driven to death using brutal force, if they were not already half-dead when they arrived and could then be thrown onto wagons right at the ramp. The accused saw them, the naked helpless people in the tube leading to the gas chamber, hurried along by the dictates of the frictionless extermination machinery, and like all others in the camp he heard the despairing cries from the gas chamber – and he made his active contribution to all of this. The responsibility for acts like this does not at some point in time come to an end, just because the acts were committed too long ago. And criminal justice and all of us as a society do not have the right to say once again that we do not want to look there anymore, as was the widespread sentiment in our society and justice system in the 1950s and ‘60s. The proceeding against Demjanjuk is therefore not just a requirement of justice for those who as the next of kin of the murdered victims or as survivors have

suffered from his acts and continue to suffer to their advancing years – the co- plaintiffs. The proceeding is moreover an imperative of justice for a society that assures itself of its fundamental values also and especially by way of defining responsibility in cases of crimes against humanity as something that does not simply expire as time passes. The German judiciary is therefore obliged to prosecute, if this is not undertaken by other states, not only due to the principle of legality but also for moral reasons. And other states that might have wanted to take this prosecution upon them are nowhere to be seen – the Polish judiciary, for instance, after years of investigations reached the correct, albeit not surprising conclusion that John Demjanjuk is not Ivan the Terrible of Treblinka. And if there were even the most rudimentary of investigations against John Demjanjuk in the Ukraine – I am sure that his defense would have long ago wanted to sell this to us as another point of application of double jeopardy. Criminal prosecution of John Demjanjuk on the part of the German judiciary is thus not just a question of self-commitment, it is in equal measure owed to the victims – predominantly, but not exclusively, Jews from other countries – and it is owed to the international community of values, which must not accept for these most terrible crimes of genocide to remain unavenged wherever they still can be avenged.

Ladies and Gentlemen Judges, An imperative of justice, the international community of values, human dignity – “all this is now being mobilized with pathos in the proceeding against John Demjanjuk”, I can already hear my Dutch colleague Rüters say on German public television, in the ARD, and I can sense some reluctance of a chamber of a district court to get involved with such pathos. I will therefore break down this pathos – which cannot be avoided because the acts of the accused put into question the fundamental values of our self-perception – to the simple question: What concrete charges can be leveled against the accused? It is very obvious that insisting on the enormous guilt of the accused is not to imply, just because this is one of the last proceedings for Nazi crimes, that his role should be overstated as compared to other persons involved in the extermination of the Jews. When the accused jokingly informs journalists, “I am not Hitler”, he wants to send a signal that he ought not to be demonized. And there is no question that his role was different from that of, for instance, Globocnik, who orchestrated the extermination of the Jews in the Generalgouvernement, or Frenzel, who controlled the operations in Sobibor. The accused, then, is certainly not to be reproached for having seized the opportunity of getting out of the Rowno prisoner-of-war camp (Chelm, to my mind, the accused has fabricated), by way of coming forward as a Trawniki –

however voluntarily or involuntarily. At this point, though, it is necessary that I make a historical correction from which I abstained for time reasons when the court was taking evidence. Over and over, the defense has addressed the fate of Russian prisoners of war and the mass murder committed against them. It is evident that the accused is not among the victims. And for this, there is a reason: where Ukrainian members of the Red Army were taken captive by the Germans, the Nazis regarded them as fundamentally different from Russian prisoners of war. And within the racist ideology of annihilation they were treated differently; they were considered useful. For this reason, they were routinely released from the camps if they lived in the area or if they volunteered their help to the Wehrmacht5. For instance, the Quartermaster General of the Wehrmacht issued a command to release Soviet Germans, Ukrainians and Balts from captivity as early as 25 July 19416. And recent historical research has found that already by the spring of 1942 there were 200,000 Ukrainian volunteers.7 Therefore, if the accused had spent more than two years in the prisoner of war camp of Chelm, as he has claimed in various statements in earlier proceedings, he would not only be the only known person to survive there for such a long time, he would also have been a kind of conscientious objector to the various opportunities to save himself from nearly certain death. The accused has never told such a story - because this story never happened. The final phase of the Sobibor camp is symptomatic for the German view of the Ukrainians, which makes a clear distinction between Russian prisoners of war and Ukrainian voluntary helpers: in late September 1943, a large group of Jewish Russian prisoners of war were brought to Sobibor, still wearing their uniforms. Evidently, the SS was not at all worried that the two groups of former Red Army soldiers might form an alliance – on one side were the victims, on the other were the Ukrainians, the guards, and later, during the uprising, the murderers of the escapees. As has been said, one will not reproach the accused for having wanted to save his life by letting himself be recruited from the prisoner-of-war camp. But one does have to blame him for having stayed with the Trawniki, the supporters of the extermination murder of the Jews in the Generalgouvernement, even when he became aware that his work consisted exclusively in exploiting innocent human beings all the way to their extermination, to murder them instantaneously or, in any case, assisting in this murder. Majdanek, Sobibor, Flossenbürg – a career of horror. There is never a justification for murdering innocent human beings – this is the view of the law, too, which does not consider licit taking the lives of other,

5 cf. Pohl, Verfolgung und Massenmord in der NS-Zeit, 1933-1945, 3rd edition 2011, p. 42 6 BA-MA RH 23/219, OKH, GenQu, 25/7/1941, cited in Dieter Pohl, Die Herrschaft der Wehrmacht, 2009, p. 215. 7 cf. Berkhoff, Harvest of Despair, Life and Death in Ukraine Under Nazi Rule, 2004, p. 107. 22

innocent human beings even if one believes it is the only chance to save one’s own life. If at all, the law shows consideration for the subjective situation, and it asks with a view to reasonableness – what could we have expected from you? The answer is easy: to not participate, to leave Sobibor, to run away. In times of war, the option of not being exposed to any dangers does not exist. Practically every young man in Europe in 1943 could and had to be a soldier, with his own life highly at risk. Can we, in this historical situation, reasonably expect of someone to take the risk of joining the partisans until the Red Army arrives, or of making his way home? Yes, the German courts have judged, and in several decisions have called it reasonable for those who were acting as part of the concentration camp system to be expected to report to battle rather than exterminate lives.8 How would we judge someone who in 1943 killed his neighbor in order to be sent to prison and thereby elude his impending deployment to the Eastern front? The answer is clear – why should it be any different for Demjanjuk? The law even permits further questions – the keyword here being the excuse of putative necessity: What, in the perception of the accused, was his situation when he was in Sobibor? Did he perhaps do everything in his power to evade being involved in mass murder? Did he see no way of saving his life apart from continuing to be a part of the murder machinery? But the accused is refusing us answers that might alleviate his guilt. And as a consequence there is no reason at all to assume that he wanted to elude participation in mass murder, which – as we learned when taking evidence – would have been easy enough, and which hundreds of the Trawniki in fact did. For a guard, it was quite comfortable in Majdanek, in Sobibor, in Flossenbürg – there was food, there were heated rooms, clothing, pay, vodka, jewelery from the victims, women – far more comfortable than exposing oneself to the uncertainties of escape, which the accused did not at all consider. For this reason, the unrestricted reproach remains valid: You, the accused, should not have, did not have the right to participate in the murderous extermination of the Jews in Sobibor. Someone who was unable, in the concrete situation, to follow an imperative of this kind is far from being excused, but he can hope for a bit of understanding, maybe even compassion, if he explains to us why he failed to do the right thing – and if he shows regret, if he explains that what he did was wrong and why. Regret, after all, would be an indication that he accepts our binding norms and our ethical values. And in the end our objective in criminal law is for our fundamental conceptions of humanity to be recognized, especially by those that

8 District Court Weiden, decision 8 / 7 / 1957 vs. Kübler, JUNS-V, Nr. 449, p. 13; District Court Weiden, decision 29 / 5 / 1956 vs. Fischer, p. 10/11.

have violated the imperatives. For him to recognize his guilt would allow us to meet the accused with understanding, and maybe even with compassion. But this accused does not want to explain anything to us. He makes no effort whatsoever to gain our understanding. The stubbornness of his lifetime delusion and his fate of having defense counsels who can think of nothing else than to maintain this delusion, defense counsels that concentrate on bringing forward a myriad of unsubstantiated and redundant motions – his lifetime delusion and the behavior of his defense deprive the accused even of this last chance for us to develop but an iota of compassion for him. The defense had a truly historical opportunity; by way of the accused, it could have explained to the public what it was like for the Trawniki, between 1942 and 1945, and in Sobibor. Perhaps we would have believed the accused, and he might have been given opportunity to spend the remainder of his life with integrity and outside of prison. The defense passed up this opportunity, in spite of the co-plaintiffs’ counsels having suggested it to them.

Honorable court of justice, I will not request a specific sentence. My / our clients’ ideas of which sanction they consider appropriate diverge quite significantly. Those who were able to participate in this proceeding in person were able to say for themselves what they consider right. The court will find a sentence that will be appropriate to the situation of the accused on the one hand and to his offense on the other. I trust that the court will explain the sentence comprehensively, and that it will help us in understanding what those who decide from the neutral perspective of the judges deem appropriate. And I am sure that the co-plaintiffs will, regardless of what they themselves deem right, accept any sentence as a wise decision on the part of the court, as long as they are presented with sufficient explanations. Thank you for your attention.