Manchester Guardian | 04Dec2009 | David Cesarani

This Nazi trial is a mockery of justice
It will be a disaster if the Demjanjuk case brings into disrepute the pursuit of others who commit crimes against humanity

There is little doubt that John Demjanjuk is a liar who for decades while he lived in America concealed his role as a Nazi collaborator; but his trial in Munich is in danger of becoming a farce that will undermine future efforts to achieve justice for the victims of genocide.

[W.Z. There is little doubt that David Cesarani is one of the premier Ukrainophobes in the United Kingdom. David Cesarani  was deeply involved in supporting the defamatory "SS in Britain" documentary by Julian Hendy circa January 2001. His hate-mongering and disinformation is astounding. See, in particlular, his comments at the SS2 and SS3 links.]

The proceedings, currently suspended because the defendant has a high temperature, are a show trial in which the prosecution and the defence are playing to the gallery. Both are carrying on as if the trial of Demjanjuk is the final act of the second world war and the ultimate reckoning with Nazi crimes, a fallacy that was trenchantly exposed by Antony Lerman in these columns on Thursday.

In one sense, this will be the last major Nazi era trial. It is nothing to boast about, though. The Central Office for the Prosecution of Nazi Crimes, based in Ludwigsberg, seized the chance to try Demjanjuk partly because the case would keep it in business now there are few German Nazis left to investigate. It planned a spectacular trial that would vindicate its otherwise lacklustre record.

The opportunity to try Demjanjuk had other temptations, too. The "last" war crimes trial from Nazi times to be held in Germany centres on a non-German. For a change, young Germans are being offered a history lesson in the murderous antisemitism of east Europeans. To many Germans keen to draw a line under the process of "coming to terms with the past", this is a perfect place to end.

Ulrich Busch, Demjanjuk's lawyer, has thrown a discomfiting spotlight on this warped thinking. He has forcefully contrasted the assiduousness with which the case has been pressed against his client to the half-hearted prosecution of Germans accused of worse wartime crimes. Quite rightly he has asked: why the double standard?

However, Busch went too far in depicting Demjanjuk as no less a victim of Nazi persecution than the Jews he helped send to the gas chambers. True, he was offered the choice between serving in a collaborationist unit or starving to death in a PoW camp. But many Ukrainians who opted to wear a German uniform later deserted. Some Ukrainian camp guards even helped Jews to stage revolts. Demjanjuk proved to be a willing tool. [W.Z. Hate-mongering! Mr. Demjanjuk did not send any Jews to the gas chambers. Nor was he a willing tool, as Mr. Cesarani is for the Holocaust Industry.]

In an attempt to underline the point that Demjanjuk is a victim, the defence arranged for him to be brought into court on a gurney, lying prone and apparently semi-conscious. The danger in this rigmarole is that Demjanjuk was caught playing sick when he was trying to stave off extradition from the US. Notwithstanding his fever, there is more than a suspicion of theatricality about his performance.

[V.B. What a joke. How can the defence have anything to do with how they transport him from the jail clinic to court? A biased article with a total condemnation and guilty until proven innocent.]

The prosecution team is playing games, too. They have lined up more than 30 "co-plaintiffs", relatives of the 29,000 Dutch Jews murdered in Sobibor while Demjanjuk was allegedly serving there. None is a direct witness to what Demjanjuk did or did not do. Even Toivi Blatt, one of the last survivors of the Sobibor uprising, cannot identify Demjanjuk personally.

In the UK the lack of reliable witnesses would have crippled the case before it got going. It would have been impossible to try Demjanjuk under the 1991 War Crimes Act, which requires credible evidence of actual murder.

In any case, if he is found guilty it will be impossible for the Munich court to convict him of more than being an accessory, a crime that carries a moderate custodial sentence. If the judge follows precedent and takes into account the time Demjanjuk has already spent in prison, it will be hard to sentence him to a prison term of more than two or three years. For a man accused of participating in the murder of 29,000 people such an outcome will make a mockery of the proceedings.

There is, however, an argument for holding such show trials regardless of the outcome or the tendentious evidence. Some theorists of jurisprudence argue that every trial has a theatrical element that should be acknowledged and put to good pedagogic uses. They advocate "didactic legality", that is to say staging trials to "shape collective memory" and teach society lessons about democracy and tolerance. But can this work if the defendant is an ailing old men?

In this instance there is a danger that the trial's didactic function will induce cynicism and achieve the opposite of what is intended. It is obvious that it has been staged to educate young Germans and the wider world as much as to achieve justice. Indeed, a trial that cannot have a deterrent effect or lead to retribution that matches the scale of the offence begins to look like a nakedly political and educational exercise.

It will be a disaster if the final reckoning with the last of those responsible for implementing the mass murder of Europe's Jews ends up bringing into disrepute the application of justice against others who commit genocide, war crimes, and crimes against humanity. [W.Z. Presumably, Mr. Cesarani is referring to Israeli crimes against Palestinians, or, perhaps, to British and American crimes in Iraq and Afghanistan.]

David Cesarani:

RE:  "This Nazi trial is a mockery of justice," The Guardian, 04Dec09.

You have called this 2nd Demjanjuk courtoom drama "a show trial in which the prosecution and the defence are playing to the gallery."

In fact, it is considerably less of a show trial than John Demjanjuk's 1st trial in Israel, held inside a converted movie-theatre and ending with a mob scene on 25 April 1988 -- the day the death sentence was read out -- in which the dignity of the court proceedings (i.e., what little remained) was summarily swept aside while spectators chanted and sang and danced with delight (see Lord Denning's letter of 28 April 1988 in the London Daily Telegraph).

A recurring motif in commentaries made concerning this current Demjanjuk case has been a very high degree of exasperation with the accused for allegedly playing up his ailments, confronting observers, anxious to have a more villainous-looking villain, with absolutely the wrong sort of optics. I say "allegedly" for at age 89 it's faintly possible the old man isn't either faking or exaggerating his condition.

It's also faintly possible that -- wait for it -- Demjanjuk is completely innocent, as much a victim as any Holocaust survivor, and that his trials in these past 32 years have been tantamount to a witch hunt. Presumption of innocence, due process, anyone?


Orest Slepokura
Strathmore, Alta