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.