What the Demjanjuk verdict means for war crimes prosecutions

[W.Z. Jennifer Clibbon also interviewed Rebecca Wittmann at the beginning of the trial on 22Dec2009.]

Relatives of Holocaust victims around the world are celebrating the guilty verdict handed down to John Demjanjuk, the man accused of helping to kill thousands at a Nazi death camp, by a German court on May 12, 2011. They are hoping it sets a precedent for the future.

This is a positive spin on what has been called "the last great Nazi war crimes trial." There are now so few perpetrators left alive to convict, and the penalty is five years in prison -- time Demjanjuk may never serve, given that he’s appealing the verdict.

Demjanjuk, a retired auto worker from Ohio, was 89 and in poor health when his trial began in the winter of 2009. Born in the Ukraine, he was recruited to work for the Nazis, like some of his compatriots, after the German army swept across the border into the Soviet Union.

Many observers are declaring Demjanjuk's conviction an important legal precedent in the future prosecution of those who helped the Nazis in executing their war crimes. But others say what shouldn’t be forgotten is that a whole generation of Nazis who masterminded and led the mass killings have gotten away free because of flaws in the German legal system. They remind us that Germany’s "denazification" process was shamefully ineffective in the postwar years.

An expert on this theme is Canadian historian Rebecca Wittmann. Based at the University of Toronto, she is a specialist on Nazi war crimes trials, and she sat in on part of Demjanjuk's historic trial in Munich last year. Wittmann has researched what she and others view as Germany's flawed legal process when dealing with former Nazis, which led to many getting off with remarkably light sentences in the postwar years.

CBC producer Jennifer Clibbon interviewed Wittmann about her reaction to the verdict.

Rebecca Wittmann: Demjanjuk was tried under the regular German penal code, so in that sense he was not tried as a Nazi or as a war criminal, but as an accessory to murder. The German penal code is completely different from the charges used at Nuremberg or at the International Criminal Court today, in which defendants are charged with genocide, or war crimes, or crimes against humanity. The German courts chose (along with the Allies) already in the late 1940s not to incorporate these charges into their national criminal code -- unlike France, for example, which did and tried defendants like Klaus Barbie and Maurice Papon with crimes against humanity. So the prosecutors in Munich had to prove that he acted as an accessory to murder.

The key piece of evidence against him, his SS identification card, and some documents showing that he was enlisted as a guard at Sobibor, were enough to get him convicted. The sentence, five years maximum, may seem extraordinarily short in comparison with the magnitude of the crime -- accessory in over 20,000 cases -- but in fact it's much longer than many former Nazis were sentenced in the postwar period. Many of Demjanjuk's colleagues, and most of his superiors, were either acquitted or given "time-served" sentences. So to me, this sentence is yet another example in a long history of misguided trials, charges, and sentences, pointing to a much larger problem in the German justice system and the way jurists have chosen to prosecute Nazis there.

CBC News: His defence has always been that he was a Ukrainian Red Army soldier who was a Nazi prisoner of War and conscripted to work at the Sobibor concentration camp. Some argue he's a convenient target when so many German Nazis got off without any punishment at all. Explain this complicated and flawed history of war crimes prosecution.

Wittmann: Demjanjuk was charged with aiding and abetting the murder of 27,900 people. The state attorneys arrived at this number through a process of deduction: it is presumed that Demjanjuk was a guard at Sobibor in 1943 and during that time, as Nazi documents show, the same number of people were brought to Sobibor -- mainly from the Netherlands -- and murdered there.

Demjanjuk is a problematic case for many reasons. First, he is already (in)famous for his sensational trial in Israel two decades ago. He was extradited from the U.S. and put on trial there as "Ivan the Terrible" -- a notoriously sadistic camp guard at Treblinka -- and sentenced to death (the only other Nazi sentenced to death in Israel besides Adolf Eichmann). Demjanjuk spent six years on death row before it was discovered, through the unearthing of new documents after the fall of communism and because of a possible cover up by the OSI, that he was not Ivan the Terrible from Treblinka, but in all likelihood Ivan the less terrible from Sobibor.

Demjanjuk returned home to Cleveland Ohio while American investigators put together a new case against him. This time he was tried by the Germans, which brings us to the second problem.

John Demjanjuk was conscripted by the Red Army and fought for the Soviets until he was captured by the Germans in 1942. He was then imprisoned as a POW, where he faced a few bleak possibilities: murder at a concentration camp (the Nazis killed 15,000 Soviet POWs at Auschwitz alone in 1941), death through hard labour or starvation, or Trawniki, a training camp near the Ukraine border in Poland, set up by the Nazis for POWs like Demjanjuk to do the dirty work of murdering Jews at the Operation Reinhard death camps.

So Demjanjuk constitutes a more complex kind of perpetrator than those Germans who joined the SS and worked at camps in order to avoid serving on the front; and the vast majority of those Germans were not tried, or were tried and acquitted by German courts, Demjanjuk's superiors included.

To be sure, as a participant in the mass murder of thousands of innocent people in the Holocaust, Demjanjuk should be tried and punished accordingly. The problem lies in the fact that Demjanjuk has spent many more years in prison, as an involuntary guard against whom no concrete specific proofs of his actions exists, than many thousands of Germans who voluntarily went to work at death camps and against whom there is copious evidence of participation in crimes of mass murder.

CBC News: Tell us more about this flawed prosecution of those Nazis who willingly worked at deathcamps.

Wittmann: A good example of this is the case of SS Captain Kurt Streibel, the commander of the Trawniki training camp.

While over 5,000 new SS guards were trained at the camp, mainly Soviet prisoners of war but some civilians, there were also over 6,000 Jewish prisoners conscripted as forced laborers at the camp. These prisoners were treated much the same way as they were at other Nazi camps: starvation diets and murder through work were common, as well as shootings here and there to keep the population in fear.

In October of 1943, the grisly "Aktion Erntefest" ("Harvest Action") was carried out. After attempted uprisings at Sobibor and other camps, the SS decided to act swiftly and violently as a deterrent: they shot all 6,000 Jewish prisoners at the camp in a single day, eradicating the entire work force. Kurt Streibel was indicted by the LG Hamburg in 1970 for his role as commander at the camp; after six long years, he along with five other guards was acquitted of mass murder of Jews.

How is it possible that someone like Streibel could be acquitted and someone like Demjanjuk is convicted as an accessory? The answer has to do with the German penal code and the way it was applied in Nazi trials.

CBC News: What happened with the trials of Nazis after the end of the war?

Wittmann: In 1949 the newly formed Justice Ministry rejected the incorporation of the international criminal charges (including crimes against humanity) into the West German penal code, preferring to demonstrate that they could deal with their past using laws that had already existed during the Nazi period. They used the national penal code, established in 1871, to try former Nazis.

The murder charge stipulated that the prosecution prove the subjective inner motivation of the defendant. Elements of intent in murder included sadism, lust for murder, sexual drive for killing, treachery, malicious intent, cruelty, and finally, base motives, which the post-war German courts defined as race-hatred for the Nazi trials.

The distinction between perpetrator and accomplice in the penal code specified that the primary perpetrator must show individual initiative and knowledge of the illegality of the act; this means that defendants can use the excuse that they did not know they were committing a crime. The more a defendant claimed that he believed in and identified with the Nazi world view, the less likely he was to be convicted - despite the fact that the orders of the Nazi state had been deemed illegal already at Nuremberg.

The prosecution had to prove beyond doubt that each defendant had acted individually and with personal initiative in order to be convicted of murder. In the case of bureaucratic or political entities of the Third Reich, where physical acts of murder did not take place, the only unquestioned perpetrators of murder — those with base motives — were the people who dreamt up the Final Solution: Hitler, Himmler, and Heydrich. All other state functionaries, no matter their rank, could (and usually did) claim that they were simply doing their jobs.

CBC News: You attended some of the trial in Munich and you described in an earlier interview the emotional testimonies of relatives of victims who died at the Sobibor camp. Can you describe their reaction to this verdict and the significance of it for them?

Wittmann: The reactions I have seen from the families of Sobibor victims have generally been relief that the trial is over, satisfaction that there has been a sentence at all -- and also frustration with Demjanjuk himself, who is unrepentant, refuses to acknowledge his presence at Sobibor, and has a generally off-putting demeanor in which he refuses to look at the family members or to take off his hat and sunglasses. I think there is frustration with his lack of remorse, but a general sense of satisfaction, because despite the fact that this is a short sentence, it is likely to be a life sentence for the 91 year old Demjanjuk.

CBC News: This was described as the last great Nazi War crimes trial. For what reasons was it so, and has it given victims the kind of closure they hoped for?

Wittmann: For the simple reason that there are very, very few remaining Nazis alive and healthy enough to be tried.

There are, in fact, other Nazi trials still going on in Germany in which defendants are actually being convicted. For example, in Aachen, 88-year-old Heinrich Boere was recently convicted and sentenced to life in prison for his actions as a Nazi "hit man." He admitted to killing a bicycle-shop owner, a pharmacist and another civilian in 1944 as a member of the "Silbertanne" hit squad, a unit of largely Dutch SS volunteers responsible for reprisal killings of their countrymen.

Although he insisted he had no choice but to follow orders, which is generally an invalid defense, the prosecution argued that Boere was a willing member of the fanatical Waffen SS, which he joined shortly after the Nazis had overrun his hometown of Maastricht and the rest of the Netherlands in 1940.

Note, though, that Boere's crimes are also unusual in the sense that he was first of all Dutch, and second of all part of a hit squad in which individual deaths can be proven -- unlike, for example, the many thousands of camp guards or einsatzgruppen members who were also volunteers but whose mass murder involved countless nameless innocent victims.

Finally, there isn't much public interest in Boere because he is not the symbol that Demjanjuk has become.

I'm not sure that this trial will provide closure, either for victims' families or for the prosecution of Nazis in general. Nor should it, frankly.

First of all, Demjanjuk himself, as I mentioned, remained silent and obstinate on the stand, refusing to acknowledge that he was at Sobibor or to show any remorse or sympathy for the victims. His one and only public statement was a rambling, furious tirade against Germany itself for victimizing him. He is not a savoury character.

But Demjanajuk also represents another failed attempt to show that the legal system is committed to trying old Nazis. He allows for a quick sense of satisfaction that Nazis are being tried in Germany, while at the same time he provides a sense of distance and relief: "He is not one of us."

To be sure, every last person who made up the machinery of extermination during the Nazi period should be held accountable. But precisely this has not happened in Germany, since the very first Nazi trial was opened. Although Germany now confronts its past on a daily basis like no other country -- where else do you find a nation acknowledging its own heinous crimes like the massive monument to the murdered Jews of Europe next to the Brandenburg gate in Berlin -- this confrontation did not come through trials like that of John Demjanjuk.

The law was not the setting in which Germans would come to recognize the wholesale complicity of an entire generation. This would occur through different channels, most especially the earnest historical inquiry and an explosion of archival research, sound scholarship, debate, and information to a young, curious German public.

Perhaps, indeed, the deficiencies of these trials, and the Demjanjuk trial is no exception, are necessary; perhaps their failings are precisely what has lead to more dialogue and debate and a more whole hearted confrontation with the past. And in this sense contribute to the forces that helped-and are still helping-to erode prevailing myths about Nazi crime.

So ultimately I would argue that closure is in fact not appropriate when it comes to the history of the Holocaust, and we must always continue questioning.

CBC News: What was the coverage in German media of this verdict?

Wittmann: Huge, just as the beginning of the trial was covered in every major newspaper. Depending on the political leanings of the papers and tv media, reactions were more or less critical; some felt that the verdict was not strong enough, others felt that the trial itself was misguided from the beginning.

The reaction to this trial in Germany today is not dissimilar to the reaction there was to every major Nazi trial in Germany: a huge press turn out at the beginning, waning interest throughout the seemingly endless and often boring trial duration, and then another confrontation with the Nazi past at the end.