Kyiv Post | 26Nov2009 | Andriy J. Semotiuk
http://www.kyivpost.com/news/opinion/op_ed/detail/53709/

Demjanjuk saga enters final round
Andriy J. Semotiuk writes: With shoddy evidence, a show trial in Germany is not likely to bring justice to this native of Ukraine.

As the curtain rises on the trial of John Demjanjuk on Nov. 30, 2009 in Munich, Germany, he is accused of being an accessory to the murder of 29,700 inmates of the Nazi Sobibor concentration camp during World War II. The efforts to prosecute Demjanjuk over the last 30 years, the charges and the evidence expected to be presented all point to a show trial in the making. The rule of law is not likely to prevail.

Media coverage has, so far, neglected to highlight that -- in every criminal trial, including Demjanjuk’s -- the basic presumption of innocence applies. The accused is presumed innocent until proven guilty. Demjanjuk does not have to prove his innocence. The prosecution must prove his guilt beyond a reasonable doubt.

Calling him a Nazi may garner headlines, but it will not change the fact that Nazi ideology precluded non-Aryans like Demjanjuk, who was Ukrainian and, therefore, an Untermensch or subhuman. This made him ineligible to be part of the Nazi Party. As an Untermensch, it is more likely Demjanjuk was a victim of the Nazi regime than a persecutor.

Background

Demjanjuk was born in Soviet-occupied Ukraine in 1920. As a child, Demjanjuk lived through the 1932-1933 Holodomor inflicted on Ukraine by Josef Stalin, killing millions of Ukrainians by starvation. Having survived such a Soviet atrocity, it is not surprising that -- with the outbreak of World War II -- Demjanjuk was not exactly eager to join the Soviet Red Army. Nonetheless, he was conscripted.

In 1942, he was captured by the Germans. According to him, he languished during his wartime years as a German prisoner of war until 1945. After the war, Demjanjuk and others like him from Soviet Ukraine became the target of Operation Keelhaul. Arising out of an agreement reached in Yalta among Stalin, Roosevelt and Churchill, Operation Keelhaul enabled Soviet Red Army officers, initially acting with Allied military support, to comb through displaced persons camps looking for anyone who could reveal the truth about the abhorrent Stalinist past.

Out of those caught and destined for Soviet repatriation, some committed suicide, some were shot trying to escape and still others ended up in the Soviet Gulag. The fate of Aleksandr Solzhenitsyn comes to mind in this context. Anyone who refused to return, or who managed to evade Soviet capture, was accused by the Soviets of Nazi collaboration -- whether the allegation was true or false.

Forcible repatriation became the terror of most displaced persons from the Soviet Union, including Demjanjuk. It was ironic, since the Soviets actually collaborated with the Nazis. They signed the Molotov-Ribbentrop non-aggression pact on the eve of World War II, carving up Poland with the Germans, their allies during the first two years of the war. Nonetheless, such accusations leveled against displaced persons hindered those who were unjustly accused in their efforts to emigrate to the West, at least until the Allies finally caught on to this Soviet intrigue.

In this context, in 1952, Demjanjuk obtained permission to emigrate to the United States with his wife and daughter. He settled in Cleveland, Ohio, where he found work as a mechanic at a Ford auto plant. He then had another daughter and a son. More than 20 years passed.

Accusations arise

According to recent stories, Michael Hanusiak, editor of the New York-based Ukrainian Daily News, in 1975 compiled a list of Ukrainians suspected of collaborating with Germans and presented it to the U.S. Immigration and Naturalization Service.

Demjanjuk was on the list. What Engelhart failed to identify was that the Ukrainian Daily News was nothing more than a Soviet mouthpiece, at least according to Yoram Sheftel, an Israeli attorney who wrote about the incident in his book Defending Ivan the Terrible. The newspaper served as a convenient vehicle for the Soviet KGB to set off Ukrainians against Jews, particularly in the United States.

In 1977, Demjanjuk was accused of being Ivan the Terrible, a gas chamber operator in Treblinka death camp in Poland. From 1977 to 1993, Demjanjuk faced a long series of court hearings through the American and then Israeli court systems. The case went all the way to the Supreme Court of Israel.

In the course of those hearings, he was found guilty and sentenced to death. In short, for 15 years, as he sat in U.S. and Israeli jails, those who pursued and prosecuted Demjanjuk were positive that he was not in Sobibor as they claim now, but rather in Treblinka.

But in 1993, after the defense was able to amass irrefutable evidence to the contrary, the Israeli Supreme Court lifted the sentence, dismissed the charges which, incidentally, included that he was in Sobibor, and allowed him to return to the United States. In the meantime, a U.S. federal appeals court had opened up his case after determining that U.S. prosecutors were guilty of prosecutorial misconduct in failing to earlier reveal to the defense certain exculpatory evidence they had in their files. Demjanjuk’s U.S. citizenship was reinstated and he was allowed to go free once again.

As it turned out, Demjanjuk was definitely not Ivan the Terrible of Tremblinka. But those who had pursued Demjanjuk for 15 years, swearing for certain he was in Treblinka and not anywhere else, then declared -- no, he was not in Treblinka, but rather he was in Sobibor! The process started all over again in 2002. And this year, Demjanjuk was once again on an airplane headed out of the country, this time to Germany. That brings us to now.

The German case

The question arises: Why has Germany decided to target Demjanjuk? And why now, after 30 years of silence, while the Demjanjuk case made its way through the U.S. and Israeli courts? After all, there was no shortage of Nazis to prosecute – no shortage of party members, Nazi government officials, army officers and camp commandants. Why, for example, didn’t Germany prosecute Reinhard Gehlen, the former Nazi chief of the eastern front intelligence and the other ex-Nazis he gathered in the West German Federal Intelligence Service (BND) that he headed after the war, according to the Engelhart article?

The answer is that Germany did not have the stomach to prosecute its own transgressors. While modern-day Germany has paid dearly to disassociate itself from its Nazi past, paying out millions of dollars in reparations to Nazi victims, running effective educational, restorative and commemorative programs, it is also true that Germany’s pursuit and conviction of its own Nazi transgressors has been not as impressive. Though German courts investigated more than 100,000 cases, only some 6,500 accused were convicted and, of these, most received light sentences. Not long ago Germany passed legislation that effectively provided amnesty from prosecution for German Nazis, including SS concentration camp commanders and their German subordinates. But the amnesty did not include Untermenschen like Demjanjuk.

That fact alone makes it hard to believe that this case is not a show trial. Consider the charge itself. Demjanjuk is charged not with war crimes or crimes against humanity, nor even of murder, but of being an accessory to murder. Not murder in Germany, but in Sobibor, that is to say, in Poland. Not as a high-level official, but as a low-ranking guard. Not as a German, but as a Ukrainian. Not of one or a few victims -- but of 29,700 victims! Adolf Hitler in his 1925 autobiography Mein Kampf of a lie so “colossal” that no one would believe that someone “could have the impudence to distort the truth so infamously.” It seems almost as if this is the approach being used by the prosecutors in Munich and that German descendants appear ready to buy it once again today.

Two key issues

For 30 years, Demjanjuk has maintained his innocence. Yet now, the German prosecutors who say that he was present in Sobibor will use a Travniki identity card to attempt to prove this claim and will argue that he was a volunteer there. While it is impossible in the context of an article like this to thoroughly deal with these charges, nonetheless they deserve at least some comment.

In the book Defending Ivan the Terrible, Yoram Sheftel, the Israeli defense attorney in the successful Demjanjuk appeal, points out that -- from the very beginning -- American authorities with the help of Israeli police prepared “photo spreads” to be presented to Sobibor survivors in which Demjanjuk’s picture was included for identification.

Sheftel indicates that “all 10 Sobibor survivors in Israel, who were shown the photographs, recognized neither Demjanjuk nor Federenko as someone from the Sobibor death camp. Thus, at that early stage, it was clear that the Soviet plot to present Demjanjuk as a former guard at the Sobibor death camp was totally unfounded.”

So far as is known there is no witness who can establish that Demjanjuk even harmed someone, much less murdered anyone. Only one statement taken by the Soviet KGB secret police of a Sobibor guard named Danylchenko indicated that Demjanjuk was also there. Danylchenko later indicated he was tortured by the KGB and has since died without ever being cross-examined. That is the extent of the known German prosecution evidence on presence.

With regard to the Travniki card, Sheftel indicates that on Jan. 23, 1987, the original Travniki document that purports to indicate that Demjanjuk was in Sobibor was provided for examination to the German police force’s main criminal-identification laboratory in Weisbaden, known as BKA. The laboratory analysts indicated that even after a cursory examination, it was evident that the document was a forgery. They pointed out that the face in the photograph which the prosecution in Israel had identified as Demjanjuk’s had been posted on to the uniform using photo-montage techniques. The picture was not originally attached to the card, but had been transferred from another document. There was no match between the seal on the Travniki picture and that on the document itself. Further German analysis was stopped by the Israelis with this initial report.

The Travniki document was also the subject matter of the evidence of Julius Grant, the world’s foremost forensic expert and the man who revealed the forgeries of the “Mussolini diaries” and the “Hitler diaries.”

Having analyzed all the known signatures of Demjanjuk in the years 1947 to 1986, Grant testified that the Demjanjuk signature on the card differed from all the others in the way the Ds and Ms were formed and in the fact that in all other signatures the writing was continuous but on the card it was not. Further, Grant pointed out that there were two holes in the right side of the picture on the card whilst on the paper under the holes in the photograph there were no holes. Judging by the purple ink found inside the holes which was similar to ink used by the KGB and the nature of the spacing of the holes, Grant concluded it was more logical to assume that the photograph was unstapled from some other Soviet documents and attached to the card in the Soviet Union, than that it was attached in Travniki in 1942.

Israeli officials refused to allow Grant to detach the photo from the card to make a conclusive finding, but he nonetheless concluded his evidence by saying that “the Travniki document cannot be an authentic document belonging to the defendant Demjanjuk.”

As for the contention that non-German guards in Nazi concentration camps were volunteers, the evidence indicates that basically such Wachmaener were chosen by the Germans based on physical fitness and told they could either become camp guards or remain in prisoner of war camps where they were mistreated or died. Those who tried to escape were shot. What choice is there in these alternatives? This assumes that the prosecution can establish beyond a reasonable doubt that Demjanjuk was in Sobibor in the first place. This is a tall order to fill.

A fair trial

According to the book Letters from Nuremberg, Tom Dodd, one of the key prosecutors who sought to bring leading Nazis to justice, indicates that prosecutors were as concerned about making sure that the trials were fair as they were about convicting the accused.

So far, there is little evidence that this is true in the case of Demjanjuk. In fact, in their zeal to appease his adversaries, prosecutors in Munich appear to be ready to abandon the rule of law and all reason. For this reason, the Demjanjuk trial is not just another Nazi war crime trial, but it is a dangerous moment in German history.

In considering the effects of the Holocaust, we are often reminded of philosopher George Santayana’s admonition that “those who cannot remember the past are condemned to repeat it.” We are reminded that in 1933, Germany targeted the Jews as scapegoats for the nation’s political and economic problems. World leaders, including those who professed concern for reason and the rule of law, looked on in silence.

Today the German leadership appears to be targeting Demjanjuk, and other untermenschen like him as scapegoats to slough off German guilt for what happened in the concentration camps of World War II. The question is whether the German people, and those who today profess concern for reason and the rule of law, will look on in silence again? In the end, this is not so much a trial of Demjanjuk as it is a trial of modern-day Germany.

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.

***********************************************************
Selected Comments:
[W.Z. As of this writing, there were 55 comments to this article -- most of them by anonymous "Guests" making inane comments about anti-semitism, Ukrainophobia and racism. We would like to commend B. Woronchak for having the courage to use his real name.]

b woronchak, Guest | Three days ago at 21:35

What disgusts me almost as much as these phony charges is the lack of support for Demjanjuk amongst the Ukrainian-Canadian community in Canada. My member of Parliament received numerous telephone calls from me about the matter but she is apparently too busy having her photo taken with all kinds of non-white immigrants to respond. Telephone calls to offices of both the Ukrainian Catholic and Ukrainian Orthodox churches were met with silence. And we wondered why we could not have freedom in our own country for 400 years?

Guest, Guest | Three days ago at 22:42

Hey b woronchak, you're dragging your family name through the mud by affixing it to racist rants like this. So you've got a problem with non-whites, huh? Shame on you! As a Ukrainian, I am embarrassed that there are people like you that make us look bad to the rest of the world.

b woronchak, Guest | Two days ago at 07:47

I have a problem with governments, politicians and bureaucrats that pander to "special interest groups" for votes while taxing the rest of us "second class citizens" to death to pay for their favors. If I was a racist, it would be my business - not yours, a government's or anyone else's. I lived through decades of being called a "bohunk". I don't give a damn what some spoiled, guilt ridden upper class brat with a B.A. in Psychology calls me.