World Affairs | 27May2011 | Alexander J. Motyl
http://www.worldaffairsjournal.org/new/blogs/motyl/The_Extreme_Implications_of_the_Demjanjuk_Ruling

The Extreme Implications of the Demjanjuk Ruling

The May 12th, 2011 sentencing of John Demjanjuk couldn’t have come at a better time. Just as Russia and Ukraine are experiencing a rehabilitation of Stalin and Stalinism, the Munich District Court’s verdict unintentionally revealed just how morally demanding and politically disruptive the prosecution of real and alleged evildoers can be.

The court sentenced Demjanjuk to five years for being an accessory to the murder of 28,060 Jews in the Nazi concentration camp in Sobibor, in occupied Poland. The former automobile worker from Cleveland and former Soviet POW from Ukraine had already been tried, unsuccessfully, for being the sadistic Treblinka guard known as Ivan the Terrible. This time, German prosecutors claimed that Demjanjuk had been a guard at Sobibor and that the very fact of being a guard in such a setting constituted a crime, even though -- or perhaps because -- they were unable to prove he had actually committed any specific criminal act. Much of the subsequent commentary has either expressed satisfaction at justice having been done or decried the trial as a farce. Both sides have a point and both sides miss the real point.

What the German court did was to declare that dispositions, not actions, can be criminal. Demjanjuk was found guilty not because he demonstrably killed anybody, but because he had been present, as a guard, in a place that killed people. Since he could presumably have made himself absent, his presence must have been indicative of moral turpitude. According to the court’s logic, that moral turpitude -- that callousness, that indifference to human suffering -- must be treated as a criminal act. In other words, one might be punished not for actions but moral intentions, or lack thereof. Consciously or not, the court pursued a line of reasoning that represents an extremist variant of Kantian morality. The court went far beyond Kant’s claim that intentions must be judged moral or not and argued that they may in fact be judged criminal -- a claim that even hyper-fundamentalist Christian sects might consider too radical for their taste.

What makes the court’s logic profoundly revolutionary is that it, like Kantian morality, must be universalized and made applicable to everybody -- not just Holocaust-era concentration camp guards. That means that all guards in all prisons and camps in which atrocities have been committed bear criminal responsibility for those atrocities and should be treated accordingly. Thus, given the inherently murderous nature of the Gulag, all Soviet concentration camp guards and secret-police agents are, whether Russian, Ukrainian, Jewish, or some other nationality, necessarily culpable for crimes that are probably as severe as those ascribed to Demjanjuk. Every East German who patrolled the border with West Germany bears criminal responsibility for the people who were shot trying to cross. Every American who guarded the prison at Abu Ghraib is as guilty as the few soldiers who tortured inmates.

But the court’s logic is even more far-reaching than this. After all, being a guard in a camp is not essential to the moral claim of criminal liability. The court’s moral logic must, by the very nature of the boundlessness of moral claims, extend to anybody who was in the presence of crimes and failed to act to prevent them. Accordingly, the Dutch peacekeepers who did nothing to stop the massacre at Srebrenica are accessories to the actual killers. Vladimir Putin, as a career KGB officer, is no less culpable than Soviet concentration camp guards. In turn, Gerhard Schröder and Jacques Chirac must share in Putin’s guilt, the former for calling him a “flawless democrat,” the latter for granting him the Legion of Honor medal -- actions that implicitly whitewashed the KGB’s crimes. And Angela Merkel, every time she travels to Moscow, is almost as responsible for the continued incarceration of Mikhail Khodorkovsky as the Kremlin, since she could easily insist that the unjustly imprisoned businessman be released -- or else.

Legal theorists will debate whether or not the German court made a mistake in taking the argument for culpability this far, but what’s done is done and, if the international community is serious about morality and criminality, it will have to build on Germany’s example and pursue justice assiduously. Obviously, such a course will be extremely destabilizing, if only because there must be many thousands of former Communist guards and secret policemen living comfortably in the post-Soviet states, Israel, Europe, Canada, and the United States. Defenders of justice will have to argue that some instability -- even if reaches into the highest circles of Russian, German, and other political elites -- is as small a price to pay for morality as the temporary financial turmoil caused by the IMF head’s recent resignation for alleged sexual misconduct.

Perhaps aware of the destabilizing consequences of its ruling, the Munich court also imposed a sentence that suggests that the price to be paid for justice will indeed be tiny. Consider that Demjanjuk was given five years for allegedly helping to kill 28,060 people. Doesn’t 1,825 days seem like a laughably small sentence for such a heinous crime -- amounting to one day for 15 victims, or just over an hour and a half per victim?

This is the truly scandalous story behind the Demjanjuk case. After having gone for the über-Kantian high ground and making moral dispositions criminal acts, the Munich District Court appears to have panicked and backtracked, effectively declaring that the dead are practically worthless. Like the court, we still don’t know exactly what Demjanjuk did or did not do in Sobibor, or why. But we do know that, after a contradictory ruling such as this, no one need fear German justice. Schröder, Chirac, and Merkel could probably get off with a few minutes’ time. Putin might have to serve a few days. And the real Ivan the Terrible, wherever he is, is certainly laughing.

SELECTED COMMENT:

Andriy Semotiuk: May 27, 2011 07:02:27 PM

A fundamental principle of Western jurisprudence is individual responsibility for one's actions. In criminal law, this requires that the charges against the accused, and the accused’s responsibility for the crime, must be proven beyond a reasonable doubt. In the Demyanyuk case there was no finding of individual culpability, there was instead, a PRESUMPTION of it. There was no finding of voluntariness, there was instead a PRESUMPTION of it.

That is why this case was a show trial, not a real trial. Let us be clear. No sensible human being denies the facts of the Holocaust, the loss of 6 million Jewish lives or their suffering, nor the turmoil initiated by Nazi Germany that resulted in the loss of some 50 million lives in World War II. That is not what all this is about. What is being questioned is the role Demyanyuk played in all that. One of the great attributes of the jurists at Nuremberg was their insistence that the accused have the ability to fairly defend themselves, and that the proceedings be fairly conducted. The essence of the Nuremberg trials was to find the accused guilty of INDIVIDUAL responsibility for the crimes committed. Unlike in the Demyanyuk case, in the case of the Nuremberg defendants there was no doubt about their identity, there was no doubt about their presence and there was no doubt about their involvement. The essence of MUNICH II (ie this Demjanjuk trial) was to create a stage on which victims of the Holocaust could have another opportunity to present their stories while modern Germany could slough off some of its blame to non-Germans. So certain were the accusers of Demyanyuk’s guilt that there was no need for evidence. It was simply PRESUMED. Thus, for example, there was no extradition but merely deportation. The existence of doubt about the legitimacy of the Travniki ID card raised by an FBI report because of Soviet KGB secret police involvement, was simply dismissed by the court since that matter had already been decided. There was no finding of Demyanyuk’s involvement in harming anyone. There was no clear evidence of volition on the part of the accused, even IF he was in Travniki, and even IF he was in Sobibor. In short there was never any doubt because his guilt was simply PRESUMED.

Munich II was not a demonstration of the rule of law, it was the politicization of the law. How else could you explain the fact that based on the evidence they evidently had, Munich prosecutors knew, or should have known, that Demyanyuk was not Ivan The Terrible. Instead they sat silently for two decades while his false trial in Israel was reported on the front pages of all Western newspapers. Why didn’t the witnesses or prosecutors in Munich step forward to identify Demyanyuk then, not as Ivan The Terrible of Treblinka, but as they later claimed, Demyanyuk of Sobibor. Demyanyuk, who they claimed was an accomplice, to not just a few deaths, but to the deaths of some 29,000 people!

Imagine that. For over two decades a man responsible for the deaths of 29,000 people, a man whose name was on the front pages of every serious Western newspaper, was never accused of these crimes UNTIL AFTER he was found NOT GUILTY of being Ivan The Terrible in Israel. Then, suddenly the Munich prosecutors awoke and realized, no, he was NOT Ivan The Terrible at all. No, he was actually a man who was responsible for 29,000 deaths in Germany. It was only then, over 60 years after these deaths, despite the fact that he lived NOT in hiding, but openly in Cleveland all that time, that they finally identified him as the camp guard at Sobibor. The cost of MUNICH II was to cross the same line the Nazi Judges crossed in the 1930s. In the 1930s the result led to the collapse of the rule of law in Nazi Germany, the outbreak of World War II thereafter, the deaths of some 50 million people and finally ended with the ultimate conviction of those same Nazi judges at Nuremberg after the war.

For these reasons Demyanyuk’s court case was so outlandish, so irregular, so aberrant that anyone familiar with the norms of the rule of law and the rights afforded ordinary citizens in a free and democratic society should have been and should now be protesting the whole process, instead of celebrating its conclusion. In short, this case was not a trial about Ivan Demyanyuk. It was a trial about modern-day Germany, and by extension, since Demyanyuk came from there, the United States. I, for one, cannot hold my head up high and claim there was a victory.