John Demjanjuk was 19 years old

Barbara Amiel     Sunday Times     08-Aug-1993

Judgments that are best left to God

The "Ivan the Terrible" case reveals dangers in pursuing Nazi war crimes trials, says

On July 29, the Supreme Court of Israel did not do the worst of all possible things and hang John Demjanjuk.  Nor did it do its second worst and convert his death sentence to life imprisonment.  For one moment, it seemed as though it might scale all heights of moral and legal authority by admitting error and acquitting the prisoner.  In fact the court took the third worst option and, while acquitting him, simultaneously convicted him of crimes of which he was not charged and could not defend himself.  Look, said the Supreme Court of the world, Demjanjuk is innocent of being Ivan the Terrible, but he did do something.

Demjanjuk's flat Ukrainian features seemed uncomprehending as he listened to the judges.  After the acquittal he said he wanted to see his family in America and tour Israel, which he had been told was a lovely land.  Is Demjanjuk feeble-minded, I wondered?  Whatever, he was soon back in his Israeli jail, pending a hearing on whether new charges could be pressed.

Demjanjuk had been charged with being Ivan the Terrible, the psychotic concentration camp guard who took personal delight in the murder of 900,000 Jews in the Treblinka death camp.  The evidence did not support this.  But virtually all observers took the line that Demjanjuk, a Ukrainian who was captured by the Germans in the second world war and then probably worked for them, must be guilty of something.  Perhaps, I thought, that's how Stalin's mind worked when he sent any repatriated Russian who had been a Nazi PoW to the Gulag.  They must, thought Uncle Joe, have been guilty of something.

Few commentators seemed to worry about this.  As Gitta Sereny, the author and journalist who has followed the Demjanjuk case since its inception, wrote: "... the judges' failure to find a way to mark Demjanjuk for ever before the whole world as the criminal he certainly was, meant that morality was set aside."  What more she wanted than the seven years' imprisonment Demjanjuk served for a crime he did not commit one cannot imagine.

Perhaps it is necessary here to point out that I hold no brief for Nazis and could happily strangle them with my bare hands.  Nor do I believe that the second world war was so long ago that we should all forget about crimes committed: statutes of limitation do not apply to war crimes because the crimes are so immense.

Still, the point has been reached when most Nazi war crime prosecutions should cease.  It is one thing to prosecute an Eichmann whose identity is not in doubt and we might well have done the same had we got hold of Mengele or Bormann.  But the problem with pursuing crimes by smaller fish like those facing possible prosecution here in Britain who deny being involved in matters that occurred a long distance away in place and time is twofold: the value of evidence diminishes with time and distance so that the chance of proving a crime beyond reasonable doubt to a point of moral certainty becomes very difficult.  This identification difficulty inevitably results in our willingness to accept a lower threshold of evidence vide our new War Crimes Bill, whose evidentiary changes have now injured our entire judicial system.

All this apart, the most subtle and to my mind most important problem illustrated by the Demjanjuk case is this: behind the mistaken attempts to carry on Nazi war trials today is the determination to view human actions ahistorically.  This attitude will confront us in any trials held here.

John Demjanjuk was 19 years old when he was pushed into Stalin's Red Army to fight the Nazis.  His education had been rudimentary.  His family had suffered desperately under Stalin's man-made famine that deliberately starved to death 20m Ukrainians.  When captured by the Nazis in 1942, it seems Demjanjuk was offered a chance to work for them.  What did he know of Nazi ideology?  Auschwitz was in the Nazi mind but had not yet been activated.  Jews themselves did not believe in it.  What would you do to get an extra crust of bread and live?  What would Miss Sereny do?

When Demjanjuk had the chance in the early 1950s to get out of the displaced persons camp in which he was, he lied to the American authorities.  He did not mention that he had worked for the Nazis.  To have mentioned it would have made him ineligible for an American visa and he would have been sent back to the USSR.  To have told the truth in 1952 would have meant certain execution by Stalin.  What would you have done?  And speaking as a Jew myself, if I had been sentenced to a death camp and as an inmate had been ordered by the Nazis to work for them as a Sonderkommando, one of those wretched prisoners who cleaned out the gas chambers for a bit of extra food and a couple more months to live, what would I have done?  A lot of Jews faced that and took the job.  I can only thank the Lord that I was never put to the test.

And that is the point.  How can you judge in freedom what a person does who exists in an unfree and indecent society?

Shortly after the second world war, a civilian boat in the Atlantic hit a free-floating mine and was blown up.  The captain decided that only the strong should be put in the lifeboats since only they might have the strength to keep rowing.  He ordered the old, injured or children out of the boats and as an example he, being injured, was put overboard.  By chance a boat did pass and rescued a number of people, including the captain.

He was tried before an Admiralty court, which decided it could neither condemn nor condone the captain.  His duty, it reasoned, was to save as many of his passengers as possible and clearly by his own actions he did what he thought best.  But it was the obiter dicta of the judgment that caught my attention: to adjudicate this situation, the court said, we would have to convene in a lifeboat under the same circumstances.

It was a passing remark, but it touched a great truth.  There is no difficulty in judging Ivan the Terrible, whose crimes are a fetid wound under any circumstance.  But to judge Demjanjuk we would have to be the same boy in that nightmarish world, facing the Nazis and then the questions of American immigration officers, knowing that the same fate awaited us.  Attempting to pass judgment today under the safety and protection of our system is arrogant and stupid.  These are the judgments best left to God.