kyivpost.com | 21May2009 | Andriy J. Semotiuk
http://www.kyivpost.com/opinion/op_ed/41895

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 been followed.

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 suicide.

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 atrocity.

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 Demjanjuk’s case.

Why?

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 of law.

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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 andy@myworkvisa.com.