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‘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
2 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
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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
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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
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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
9 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
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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
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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
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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
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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
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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
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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
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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
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justice done”, even though this justice came too late for the overwhelming majority of perpetrators and survivors of the Holocaust.76
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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
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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
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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
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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
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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’,
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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 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
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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
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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
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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
