kyivpost.com | 21May2009 | Andriy J. Semotiuk
Miscarriage of justice: John
Demjanjuk case troubles conscience
Andriy Semotiuk says the
case against Ukrainian native Demjanjuk, accused of being an accessory
in killing 29,000 people during World War II, is shaky at best.
Any American accused of being an accessory to murder, that is to say
accused of being an accessory to one of the most heinous crimes known
to mankind, should be tried in U.S. courts under U.S. criminal law. The
alternative – if the crime occurred in another jurisdiction – is to be
extradited, according to international criminal procedure, to that
nation to be tried there.
Until tried and convicted, according to our precepts of law, such a
person must be presumed innocent. From the very outset of the case
against John Demjanjuk, however, these fundamental precepts have not
In fact, the Demjanjuk case has involved criminal allegations advanced
against him through civil law procedures – a criminal case prosecuted
as an immigration matter. There was a reason for this.
Prosecuting Demjanjuk in this way enabled those who seek his demise to
deport him from the United States by meeting a lower test applied in
immigration cases of showing that, on a balance of probabilities, he
misrepresented his background when he immigrated to the United States.
Otherwise, they would have had to show his guilt in committing a crime
beyond reasonable doubt. However, now that the deed is done, they
alleged that he was found guilty of being a “Nazi war criminal” when,
in fact, all that has been found is that he misrepresented his past
when he entered the United States as an immigrant.
Anyone who knows the history of Operation Keelhaul following World War
II will understand why Demjanjuk’s misrepresentations were not
necessarily so black and white and directly connected to Nazi
atrocities as some would have us believe. Then, refugees from displaced
persons camps were forcibly repatriated to the former Soviet Union
where some were killed, others exiled and still others committed
In short, use of this immigration procedure alone in Demjanjuk’s case
should have set off alarm bells about what this may mean for rule of
law and a fair and balanced judicial system in the United States. But
to really grasp the significance of what happened, we need to touch on
some other basics.
Demjanjuk was never a Nazi. Nazis were Germans and they believed in the
purity of the Aryan race. They had no time for mere Slavs like
Demjanjuk or other races that were either to be liquidated or driven
into submission and used as servants for the Third Reich. As a prisoner
of war captured by the Germans from the Red Army and allegedly put to
work in the death camps, it can hardly be said that John Demjanjuk
“volunteered” to be such a guard.
The more troubling aspect of this case is, however, that for over a
decade, those who sought to bring Demjanjuk to “justice” maintained
that he was in fact Ivan Grozny, also known as Ivan the Terrible, a
grisly figure who was indeed involved in the persecution of inmates in
the Treblinka Nazi concentration camp.
These accusations led to Demjanjuk’s deportation to Israel where
witness after witness identified Demjanjuk as Ivan the Terrible. They
were certain and admitted no doubt. Following his conviction in the
Israeli court, however, and during the process of Demjanjuk’s appeal,
the defense team located witnesses who knew the real Ivan the Terrible
and who signed sworn statements attesting to the fact that John
Demjanjuk was not Ivan the Terrible. Included among these statements,
according to those who worked on the defense team, was a statement by
the real Ivan the Terrible’s girlfriend who definitively swore
Demjanjuk was innocent of these charges.
The power of this evidence, as well as the reopening of the Demjanjuk
case in the United States by the U.S. Sixth Circuit Court of Appeals
while the Israeli appeal was pending, forced the Israeli appellate
court to conclude that a mistrial had taken place. The judges found
that Demjanjuk was innocent of the charges and allowed him to return to
the United States.
Demjanjuk’s U.S. citizenship was restored after the U.S. federal court
found the Office of Special Investigations had been guilty of
prosecutorial misconduct for not revealing exculpatory evidence to the
defense team that would have initially blocked the deportation of
Demjanjuk to Israel.
After more than a decade of maintaining that Demjanjuk was at one camp
and was Ivan the Terrible, the prosecutorial team now maintains that
Demjanjuk was not there, but in another Nazi death camp where he was an
accomplice to the murder of not just a few, but of no less than 29,000
victims! Where was the evidence of the 29,000 victims when he was being
tried in Israel on the first round? How was it possible for him to hide
– for almost 65 years – from his role in helping to murder 29,000 camp
inmates since the end of World War II. This possibility seems
far-fetched, considering that – for the last 30 years – he was the
target of a relentless campaign to convict him of any kind of Nazi
Ironically, a few years ago, Germany passed a law setting a time
limitation on the prosecution of German war criminals. Thus Germans,
who were primarily the ones responsible for the death camps, cannot be
prosecuted, but individuals from other countries, like Demjanjuk, can!
What troubles me the most about this case is the silence of individuals
and organizations ostensibly dedicated to human rights and their
failure to speak up in support of Demjanjuk. For example, I was a
member of the American Civil Liberties Union, an organization dedicated
to the protection of the civil liberties of Americans, including
protecting the due process rights of individuals. I asked them
specifically to speak up in the Demjanjuk case and was met with silence.
I understand very well that defending someone accused of being a Nazi
is a difficult challenge in our society, but isn’t it in precisely such
circumstances that your true dedication to your beliefs is revealed?
Demjanjuk may not have been a saint. However, we are not measuring him
against the standard of perfection. Let us remember that there are very
few participants who had nothing to hide about their conduct in World
War II. Let us remember the Allied fire bombings of Dresden and
Hamburg. Many consider those attacks to be war crimes. Let us remember
the roles played by Italy and Japan as allies of Nazi Germany. Let us
not forget that the Soviet Union signed the Molotov-Ribbentrop Pact in
1939 to enable Hitler to invade Poland and carve it up with Stalin. Let
us remember the collaboration of Vichy France. Let us consider the role
of some 150,000 Jewish soldiers in the German army, including at least
a dozen high-ranking officers of Jewish descent as well as the role
played by Jewish Kapos, police and the Judenrat during the war. Let us
remember that it was German officers and German soldiers that governed
the death camps of Nazi Germany – not Ukrainians like Demjanjuk.
While the world ignores such instances of Nazi collaboration, it
watches in silence as prosecutors seek to pin the tail on the donkey in
The reason is because this is not really about Demjanjuk as a camp
guard at all. That is clear from the fact that he is accused of being
an accessory to 29,000 deaths, but not of murdering anyone. Isn’t that
odd? That is because there is no evidence of his killing anyone. This
is an accusation of guilt by association. It is founded on the belief
that anyone who was a guard at any Nazi camp was by that very fact
guilty of a war crime. No allowance is made for the possibility that
such guards were not there of their own volition but forced to be there
by threats to their families or other circumstances. Mere presence was
enough. In this sense the Demjanjuk case is little more than a Western
show trial to reinvigorate the memory of the Holocaust and the
collateral damage to people like Demjanjuk and others is negligible or
even deserving as far as those who are running this campaign are
concerned. It is a show trial along the lines of what we saw in the
former Soviet Union and Nazi Germany previously. Those who
seek to condemn the atrocities of those regimes and who hold the rule
of law dear to their hearts owe it to Demjanjuk to rally to his defense.
I have very little in common with American conservative Patrick
Buchanan otherwise, but he is the only prominent political commentator
who has spoken up about this witch hunt and I respect him for that. But
where are all the others? It appears they are not concerned that the
Demjanjuk case demonstrates that American courts can be politicized and
made to bow to the pressures of expediency. It appears they are
prepared to accept that America cannot always be relied on to be
balanced, fair and to protect the rights of its citizens and the rule
Andriy J. Semotiuk is an
attorney, with a practice in international law dealing with
immigration. He is a member of the bars of California and New York in
the United States and Ontario, Alberta and British Columbia in Canada.
A former United Nations correspondent in New York, Mr. Semotiuk is a
member of the Los Angeles Press Club and resides in Los Angeles. He can
be reached at firstname.lastname@example.org.