National Law Journal | 29Jun2009 | Michael Tigar, John Broadley, John Demjanjuk Jr.
Letter to the Editor
The Demjanjuk deportation
Professor Harry Reicher is wrong about John Demjanjuk and wrong about
the U.S. Justice Department's Office of Special Investigations (which
he mistakenly calls the Office of Special Prosecutions). ["Demjanjuk
deportation: a milestone," NLJ, June 11, 2009.] The U.S. government has
indeed pursued John Demjanjuk for more than three decades. The old
adage "justice must be seen to be done" is a good starting point.
For the first decade and one-half, that pursuit consisted of the DOJ
committing fraud on the courts of the United States and Israel. This
fraud, documented by the U.S. Court of Appeals for the 6th Circuit,
consisted of the DOJ failing to disclose documents that showed that
Demjanjuk was not "Ivan the Terrible," a brutal Treblinka guard. Based
on the fraudulent evidence, Demjanjuk was extradited to Israel and
sentenced to death. His family uncovered the truth, and the Israel
Supreme Court acquitted him. Israel's attorney general said that the
acquittal barred prosecution for other offenses, including the ones now
being pressed in Germany. Ironically, at that time, the Office of
Special Investigations (OSI) allowed Jacob Tannenbaum, a 77-year-old
admitted brutal Jewish kapo, to live out his life at home in the United
States due to age and health reasons.
Despite the Israeli result, and two independent U.S. court findings of
fraud, the OSI has never apologized to anyone, let alone Demjanjuk and
his family, nor offered compensation. Nor were the perpetrators of the
fraud punished or even reprimanded. Today, with a blind eye to the case
history, Professor Reicher hails these perpetrators of fraud as heroes.
Turning to the German prosecution, one irony is that, in the earlier
prosecution, one fraudulent act of the U.S. government consisted of
inducing a German citizen who had worked in the death camps to give
false testimony implicating Demjanjuk. In the meantime, the allegations
now being made against Demjanjuk have been reviewed in Poland, the site
of the death camps, and that government has pronounced the evidence
insufficient and closed the investigation. Demjanjuk, now 89 years old,
has always and continues to maintain his innocence.
Professor Reicher cites a civil judgment against Demjanjuk as somehow
showing that he is guilty in Germany (he refers to Demjanjuk as "the
perpetrator"). That judgment does not establish the elements of a
criminal violation of German law, did not require proof beyond a
reasonable doubt and did not respect the presumption of innocence. It
is understandable that journalists might misunderstand basic legal
principles. It is not excusable for law professors to do so.
The German prosecution is being pressed by political and journalistic
elements in Germany who want to shift the blame for the Holocaust from
the Nazi government to Ukrainians, Poles and Czechs. In the case of
Ukrainians, this was a people who less than a decade before had
suffered Stalin's forced famine genocide of more than 10 million
innocent lives. This was Demjanjuk's childhood trauma just eight years
before he was conscripted into the Red Army and sent to battle, where
he was hit by German artillery fire and nearly killed.
So these elements have decided to claim that prisoners of war from
these countries who were compelled to serve as guards on pain of death
bore major, if not principal, responsibility for exterminations. These
political elements have been churning out this sort of propaganda for
decades, as the revelations about how Germany failed to take meaningful
steps against Nazi criminals became public knowledge.
This stateless old man, suffering from severe medical ailments that
were worsened by his unjust imprisonment, is more a victim of the Nazis
once again and another expedient pawn in the game.
Michael E. Tigar
John H. Broadley
John Demjanjuk Jr.
Michael E. Tigar,
Professor of the Practice of Law at Duke Law School and professor
emeritus at American University Washington College of Law, and John H.
Broadley, a partner at Broadley and Associates, represented John
Demjanjuk in the deportation case brought against him by the U.S.
government. John Demjanjuk Jr. is his son.
National Law Journal | 11Jun2009 | Harry Reicher
Commentary: Demjanjuk Deportation a Milestone
No time limits should apply to prosecuting genocide and crimes against humanity
A central element of the human rights movement is ensuring perpetrators are brought to justice.
The deportation of John Demjanjuk to Germany, to stand trial for
Holocaust-era atrocities involving the murder of 29,000 concentration
camp inmates, is an important milestone in modern human rights history.
After exhaustive and painstaking examination of voluminous material,
courts in the United States have found, "by clear, convincing and
unequivocal evidence," that Demjanjuk "actively participated" in
persecutions at no fewer than four horror camps: Trawniki, Majdanek,
Sobibor and Flossenberg. At Sobibor, which existed for the sole purpose
of exterminating human beings, he "contributed to the process by which
thousands of Jews were murdered by asphyxiation with carbon monoxide."
Moreover, his participation was "willing."
A central component of the human rights movement of the post-World War
II era is ensuring that perpetrators are brought to justice; indeed, it
is a key index of the success of the system. And sometimes that applies
irrespective of the effluxion of time (more than 65 years, in this
case) or the age of the perpetrator (Demjanjuk is 89 years old).
The old adage, justice delayed is justice denied, is a good starting
point. Applied to defendants, it is a recognition that, in normal
circumstances, it is unconscionable to drag out prosecutions and leave
defendants waiting in limbo, with all the attendant risks, such as
problems of proof due to unavailability of witnesses, staleness of
evidence, the failure of memories and so on. The adage is in fact the
underpinning to a constitutional guaranty, in this country, of a speedy
JUSTICE FOR THE VICTIMS
But most good rules have room for exceptions, should the circumstances
warrant, especially when the application of a rule itself leads to
injustice. Justice, it will readily be appreciated, is a fundamental
notion that applies not only to defendants. What about victims? What
about survivors, relatives and loved ones of victims? And what about
history? Surely, they too deserve consideration, as part of the overall
equation, in the sense of being entitled to see that the law is applied
and that those who are found guilty of having committed crimes are
dealt with accordingly.
How much more so is that the case when the crimes concerned are
genocide and crimes against humanity, the two most egregious offenses
in the international legal lexicon. So heinous are these offenses, and
so destructive of the core fabric of international society, that they
cannot admit of any limitations period, which would set a deadline
beyond which prosecution cannot take place.
It is not at all far-fetched to imagine that, when Adolf Hitler said,
in 1939, "Who, after all, speaks today of the annihilation of the
Armenians?," he was not simply referring to the fact that the Armenian
genocide, of barely two decades earlier, was largely forgotten and
unremarked, but also, very significantly, that, despite the fact that
1.5 million to 2 million people were slaughtered, no one was, in any
meaningful sense, held responsible.
SENDING A CLEAR MESSAGE
One of the principal rationales behind having orderly trials at
Nuremberg, after World War II, was the aim of creating international
law precedents and sending loud and clear messages to future would-be
tyrants that this was the fate that potentially awaited them, should
they choose to go down the same path. Making prosecution of genocide
and crimes against humanity subject to time limits is a sure means of
undermining that noble intent. An important component of justice, in
the case of crimes of such enormity, is that those who commit them not
be permitted to rest easy, or sleep tranquilly in their beds, for the
rest of their lives.
This is the clear, unmistakable lesson of the Demjanjuk case. The
civilized world owes a debt of gratitude to the morally courageous team
in the Office of Special Prosecutions in the U.S. Department of
Justice, which has conscientiously pursued John Demjanjuk through all
legal machinations for more than three decades. The same applies to the
prosecutors in Germany who are prepared to put him on trial.
According to the Sixth Circuit Court of Appeals, the Office of Special
Investigations (OSI) was guilty of prosecutorial misconduct
constituting fraud on the court in obtaining the denaturalization of
John Demjanjuk in 1981 and his extradition to Israel in 1986. The
reader is invited to peruse my CRITIQUE of Wiseman's Report on my MoZeus website or on this website to understand the evil machinations of the OSI.]
In the world of international human rights, these lawyers are heroes. [On the contrary, these lawyers are criminals!]
Harry Reicher teaches law and the
Holocaust and international human rights at the University of
Pennsylvania Law School, and is scholar-in-residence at Touro College
Jacob D. Fuchsberg Law Center.
1. June 11, 2009 08:17 PM
Double Jeapordy - he was already acquitted of charges of being at
Sobibor (and other death camps) by the Israeli Supreme Court (the other
camps were in the indictment) and the OSI was rebuked for obstructing
justice for , among other things, destroying exculpating evidence...by
throwing it a McDonalds dumpster!
2. June 11, 2009 01:25 PM
The only thing, that this witch-hunt against John Demjanjuk has shown,
is that humanity is incapable of learning from history. And that