John Demjanjuk Convicted 2011

On 12 May 2011 a ninety-one-year-old retired car mechanic named Ivan Demjanjuk was wheeled into a Munich courtroom on a hospital bed, his head propped on a pillow, an oxygen tube in his nose. He had been deported from the United States the previous year after thirty years of legal proceedings. He had been the subject of two of the longest sustained Nazi-related war crimes prosecutions of the postwar period: a trial in Jerusalem in 1986 to 1988 in which he had been convicted of being the camp guard known as Ivan the Terrible at Treblinka, sentenced to death, and acquitted on appeal in 1993 when the Israeli Supreme Court found that another man, Ivan Marchenko, had probably been the actual Ivan the Terrible; and a second trial in Munich in 2009 to 2011 on the charge of being a guard at the Sobibór killing centre during the period of its operation. The Munich verdict came on the afternoon of 12 May 2011. Demjanjuk was found guilty of being an accessory to the murder of 28,060 Jews at Sobibór in March, April and May 1943. He was sentenced to five years’ imprisonment. He was, at the time of conviction, the oldest defendant in the history of German postwar war crimes proceedings.

The Demjanjuk verdict was the most consequential single judgment in late-stage Holocaust-related war crimes prosecution. It was not for the man it convicted; Demjanjuk himself was a marginal figure, a low-ranking auxiliary guard whose individual responsibility for any specific killing the prosecution had been unable to establish. It was for the principle the conviction established. Until 2011 German courts had required prosecutors to prove a specific act of murder by an individual defendant, a test that excused most camp personnel because they had not personally pulled triggers. The Munich court in May 2011 broke that test. It found that service as a guard at a death camp was itself participation in the crime of mass murder, regardless of whether the prosecution could prove specific acts. The principle was the principle that the surviving Nazi-hunting community, particularly Efraim Zuroff at the Simon Wiesenthal Centre, had been pressing on the German legal system for fifteen years. Demjanjuk was the case in which it prevailed.

The first trial

Demjanjuk had been born in Soviet Ukraine and had served in the Red Army. He was captured by the Wehrmacht near the Sea of Azov in May 1942 and held in a German prisoner-of-war camp at Chełm in occupied Poland. The Trawniki training camp, run by the SS in occupied Poland from 1941, had recruited from Soviet POW populations for the staffing of the killing centres at Treblinka, Sobibór, Bełżec and the Operation Reinhard system. Roughly five thousand Soviet auxiliaries, known as Trawniki men or Hilfswillige, had passed through the training camp and had served at the killing centres. Demjanjuk was one of them. The documentary trail at Trawniki, including a personnel identity card known as a Dienstausweis, identified him by name, photograph, registration number 1393, and assigned posting. He had served at Sobibór. He had probably also served at Flossenbürg. The Israeli prosecution at the 1986 trial argued that he had additionally served at Treblinka and was the camp guard known to survivors as Ivan the Terrible.

The Israeli trial in Jerusalem ran from February 1987 to April 1988. The case rested principally on the identification of Demjanjuk as Ivan the Terrible by five Treblinka survivors who had been shown his photograph in a 1976 line-up by American investigators. The court accepted the identifications. Demjanjuk was sentenced to death on 25 April 1988. The Israeli Supreme Court heard the appeal between 1990 and 1993. In the meantime, the Soviet Union had collapsed, and Soviet archives previously closed to Western researchers had become accessible. The new evidence from Soviet sources established, on a substantial documentary record, that Ivan the Terrible at Treblinka had been a different man, a Ukrainian named Ivan Marchenko, who had disappeared at the end of the war. The Supreme Court accordingly acquitted Demjanjuk on the Treblinka identification on 29 July 1993. He was deported back to the United States as the conviction had been overturned. The Israeli proceeding was, on its facts, a wrongful conviction overturned on appeal. It was also a real demonstration of the limits of survivor identification as evidence after fifty years.

Between the trials

Demjanjuk returned to Cleveland, Ohio, in 1993 and resumed his pre-trial life. The American government, however, did not regard the Israeli acquittal as the end of the matter. The acquittal had been on the specific Treblinka identification only. The wider Trawniki record, including the documentary evidence of Demjanjuk’s service at Sobibór and Flossenbürg, had not been displaced. The Office of Special Investigations of the United States Department of Justice, under Eli Rosenbaum, reopened the case in 1999 on the new ground that Demjanjuk’s misrepresentations to American immigration authorities about his wartime service had been the basis for his 1958 naturalisation as a United States citizen and that the citizenship was therefore voidable.

The American proceedings ran for ten years. Demjanjuk was denaturalised in 2002, the order was upheld on appeal in 2004, and his deportation was ordered in 2005. The deportation itself was delayed by litigation until 11 May 2009, when he was put on a charter flight from Cleveland to Munich and arrested by German police on arrival. The German prosecutors had filed charges in March 2009. The Munich trial opened on 30 November 2009.

The Munich trial

The Munich indictment was specific. It charged Demjanjuk with being an accessory to murder under German criminal law, on the basis of his service as a Trawniki-trained guard at Sobibór between 27 March 1943 and 14 September 1943. During that period sixteen transports had arrived at Sobibór carrying approximately 28,060 Jews from the Netherlands, Slovakia and elsewhere. All but a handful of the arrivals had been gassed within hours of arrival. The prosecution did not need to prove that Demjanjuk had personally killed any specific person. It needed to prove that he had served as a guard at the camp during the relevant period and that the camp’s purpose during that period had been mass murder.

The defence, led by the Munich lawyer Ulrich Busch, raised three principal arguments. The first was that the Trawniki Dienstausweis identifying Demjanjuk had been forged by Soviet intelligence services, a recurring claim Demjanjuk’s defence teams had made in both proceedings since 1981. The forensic evidence, including paper-dating and ink-dating analyses commissioned for the Munich proceedings, did not support the forgery claim. The court rejected it. The second was that Demjanjuk, as a Soviet prisoner of war forced into Trawniki service under threat of death, had had no operational responsibility for what happened at Sobibór. The court rejected the argument on the basis of the Einsatzgruppen Trial reasoning of 1948: SS personnel and SS auxiliaries who refused participation in the killing operations had not, on the documented record, been executed for refusing; the moral choice test of the Nuremberg Principles applied to Demjanjuk as much as it had to the Einsatzgruppen officers. The third was that Demjanjuk had not been at Sobibór at all and that the Trawniki record placed a different man with a similar name in that posting. The argument failed on the documentary evidence.

The trial ran for eighteen months. Demjanjuk attended sessions in his hospital bed when his health allowed and refused to attend when it did not. He made no statement to the court. He was represented throughout by Busch. The presiding judge, Ralph Alt, ran the proceedings carefully and at the slow pace that the defendant’s age and condition required. The verdict was delivered on 12 May 2011. Demjanjuk was convicted as charged and sentenced to five years’ imprisonment. The court ordered his immediate release pending appeal because of his age and health. He returned to a German nursing home.

The death

Demjanjuk died at a nursing home in Bad Feilnbach, Bavaria, on 17 March 2012, ten months after his conviction and before his appeal could be heard. He was ninety-one. Under German criminal procedure, his death before the conclusion of the appellate process meant that his conviction was, technically, not legally final. The German Federal Court ruled in 2017, in a related case, that the principle the Demjanjuk court had applied was correct in law, and the principle has been applied in every subsequent prosecution. Demjanjuk’s body was repatriated to the United States and buried at an undisclosed location at the request of his family.

The principle

The principle the Munich court established in May 2011 has been the foundation of every subsequent prosecution of camp personnel. It is sometimes called the Demjanjuk principle. It holds that a person who served as a guard at a Nazi extermination camp during a period when the camp’s purpose was mass murder is, by reason of that service alone, an accessory to the murders carried out at the camp during that period. The prosecution does not need to prove that the defendant personally pulled any trigger or operated any gas chamber. The prosecution needs to prove that the defendant was there, in a guard capacity, during the killing period.

The principle has been applied to convict Oskar Gröning, the Bookkeeper of Auschwitz, at Lüneburg in July 2015 (sentenced to four years; died July 2018 before serving his sentence); Reinhold Hanning, an Auschwitz guard, at Detmold in June 2016 (sentenced to five years; died May 2017 before serving); Bruno Dey, a Stutthof guard, at Hamburg in July 2020 (sentenced to two years suspended at age 93); and Irmgard Furchner, who had worked as a typist in the Stutthof commandant’s office, at Itzehoe in December 2022 (sentenced to two years suspended at age 97). Furchner is, almost certainly, the last German postwar war crimes defendant who will ever be tried. The principle the Munich court applied to Demjanjuk in 2011 was the principle under which she was convicted.

What the late prosecutions show

The men and the woman convicted under the Demjanjuk principle were not the senior architects of the killing. They were the foot soldiers. Most were old. Most were ill. Several died before they served any meaningful sentence. The convictions did not produce, by any measure, condign punishment. They produced something else. They produced an acknowledgment, by the German legal system seventy years after the fact, that the killing of six million Jews had not been the work of a small fringe of fanatics at the top of the Reich. It had been the work of an extensive infrastructure of guards, typists, drivers, clerks, foremen and auxiliaries, each of whom had played a small role and each of whom had had a moral choice. The Demjanjuk principle holds them all responsible for the small role they played. The German legal system, having operated for sixty-five years on a more permissive standard, finally adopted the standard that the prosecution at Nuremberg had argued for in 1946. The shift came late. It came at the expense of men and women too old to receive serious sentences. It came nevertheless. It is in the law now.

See also

Sources

  • Lawrence Douglas, The Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes Trial, Princeton University Press, 2016
  • State of Israel v. Demjanjuk, Jerusalem District Court judgment, 25 April 1988
  • State of Israel v. Demjanjuk, Israeli Supreme Court judgment, 29 July 1993
  • United States v. Demjanjuk, Sixth Circuit Court of Appeals, 2004
  • Munich Regional Court (Landgericht München II), Demjanjuk judgment, 12 May 2011
  • Efraim Zuroff, Operation Last Chance: One Man’s Quest to Bring Nazi Criminals to Justice, Palgrave Macmillan, 2009
  • Peter Black, Foot Soldiers of the Final Solution: The Trawniki Training Camp and Operation Reinhard, Holocaust and Genocide Studies, 2011
  • Michael R. Marrus, Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s, University of Wisconsin Press, 2009