| 14Mar2009 | David Cesarani

Has time run out for Nazi-hunters?
Whatever the charges against former concentration camp guard John Demjanjuk, time makes such prosecutions far riskier

There is a peculiar air of irrelevance around the news that a prosecutor in Munich has issued an arrest warrant against John Demjanjuk, a Ukrainian, now a US citizen, who is charged with complicity in the deaths of 29,000 Jews at the Sobibor death camp in Poland during 1943. The time that has elapsed since the crimes of the second world war makes the work of "Nazi hunters" seem slightly absurd and trials almost a mockery of the law. Yet it is important to remember what is at stake here.

[W.Z. David Cesarani has a history of Ukrainophobia with his smears during the SS-in-Britain campaign in 2001. (SS in Britain, SS2, SS3) The controversy was initiated by a Ukrainophobic documentary by J. Henday titled "Waffen SS Division Galiezien", with responses by M. Mushynka and others. It was ressurected in 2003, 2005 and 2006.]

Ivan Demjanjuk, now 88, was captured by the German army during fighting in the Soviet Union in 1942. Like many other Ukrainians in the Red Army, he took the option to work for the Germans as a way to escape the appalling conditions in the POW camps in Russia in which over 2 million Soviet soldiers perished from wilful neglect. But he was trained at the Trawniki camp set up by the Germans in 1942 specifically to provide guards for ghettos, concentration camps and death camps in Poland. Trawninki men received ideological instruction and if they failed to meet the standards of the SS they were transferred elsewhere. Demjanjuk proved a willing instrument.

At least 167,000 Jews were killed at Sobibor, mostly from Poland, the Netherlands, and France. The figure of 29,000 victims attributed to John Demjanjuk is an estimate based on the lists of Jews sent to the camp between March and September 1943, while he served as a guard. John Demjanjuk's son has told the US press that his father never killed anyone, which may well be true. But in serving as a guard he made the work of the gas chambers possible.

We know very little about what else he did during the war. When the Germans retreated he skedaddled with them and ended up posing as a refugee in Germany. In 1952 he emigrated to the USA, claiming that he had spent most of the war as a prisoner.

[W.Z. Cesarani is simply spewing Holocaust Industry hate words against Mr. Demjanjuk with no basis in fact.]

He finally came under investigation by the Immigration and Naturalisation Service in the late 1970s as a by-product of another war crimes case. Several survivors of Treblinka identified him as "Ivan the Terrible", a notoriously sadistic guard who helped operate the camp's gas chambers. Even though his Trawniki ID card, provided by the Soviet authorities, indicated that Demjanjuk had been based at Sobibor, the investigators let themselves to be swayed by the eyewitnesses. Demjanjuk was stripped of his citizenship in 1981 and extradited to Israel five years later. The Israelis were not particularly keen to try him, but the new US Office of Special Investigations, charged with hunting and denaturalising alleged Nazi-era war criminals, nudged them into it.

The trial in Jerusalem turned into a shambles. Demjanjuk's able defence lawyer, Yoram Sheftel, showed that the identification process was flawed. He exposed the contradiction between Demjanjuk's ID card, which recorded his service at Sobibor, and the claims that he had been at Treblinka. To add to the confusion, evidence surfaced that the notorious guard at Treblinka had the same name as the one that Demjanjuk sometimes used, adding to the possibility that this was a case of mistaken identity.

Despite the holes in the prosecution case, Demjanjuk was found guilty in 1988. Sheftel did not give up, though. After a five-year legal battle the Israeli supreme court overturned the guilty verdict and he was allowed to return to his home in Cleveland, Ohio. The trouble was, as one wag quipped at the time, "If he was not Ivan the Terrible of Treblinka he was almost certainly Ivan the Very Bad of Sobibor". The case remained gapingly open.

Back in the States, Demjanjuk pushed for rehabilitation while the OSI pushed back. In 1998 he recovered his citizenship, only to face a new denaturalisation case. For the OSI, getting Demjanjuk became almost an obsession. The current director, Eli Rosenbaum, in particular, considered it was essential to make up for the bungled investigation and extradition in the 1980s that had allowed a guard at a death camp to walk free from an Israeli court. After a legal saga that went all the way to the Supreme Court, in May 2008, Demjanjuk finally lost his citizenship. Why, though, did it take so long for the Germans to act and what can be the purpose of their latest move?

[W.Z. Why does not Mr. Cesarani clearly state that the Sixth Circuit Court of Appeal ruled that the OSI perpetrated "fraud on the court" to obtain the extradition of  Mr. Demjanjuk to Israel in 1986 and also to obtain his denaturalization in 1981? Neither does he inform the reader that the guilty OSI personnel were never brought to justice.]

Immediately after the debacle in Jerusalem, it would have been unthinkable for the then-West German authorities to seek to try Demjanjuk. Then, for as long as Demjanjuk's case was grinding through the US courts they had to hold off. It might be thought that after so long, when the suspect is 88 years old and far from well, the Germans would have relented. But one former war crimes investigator told me that the German Federal Office for the Prosecution of Nazi Crimes, at Ludwigsberg, needs at least one case a year to remind people that it still exists and to give itself a raison d'etre.

Unfortunately, it is not necessary to be cynical to see the pitfalls in this latest case. Demjanjuk will be 89 this April, so even if the case proceeds at the legal equivalent of warp speed he will probably be a nonagenarian by the time he faces a judge in Munich – if ill health does not cancel out the viability of a trial. The US Justice Department may order his deportation or the Germans may seek his extradition but either way his lawyers will make the case that he is too old and frail. It will be an unholy spectacle.

If he is finally sent to Germany, German law requires that to get a conviction for abetting murder the prosecutor must prove that while a guard Demjanjuk acted out of "base motives" (such as sadism or racism) and not that he was simply obeying orders. While the prosecution have good documentary evidence to place him at Sobibor, the paper trail is mute beyond that point. There is little or no reliable, credible eyewitness evidence pertaining to his attitude at the time, and Demjanjuk is hardly going to admit to anti-semitism or deliberate cruelty.

Even if he is found guilty, what sentence can the court pass? In the 1960s and 1970s West German courts (especially those in Bavaria, from whence these proceedings emanate) gave relatively short terms in prison to convicted Nazi camp guards. But Demjanjuk has already spent seven years in an Israeli jail. Any sentence less than life hardly meets the scale of the alleged offence, but what does "life" in prison mean in the case of a 90-year-old man? And how will it look to a sceptical public around the world?

Yet we have to remember that Demjanjuk and his ilk serviced a killing machine that operated on an unimaginable scale, day after day, for months on end. [W.Z. Cesarani is beating the Holocaust Industry drums!] Notwithstanding the passage of time, there must be justice. [W.Z. Especially for the ilk of OSI and Holocaust Industry personnel and especially Mr. Cesarani!] The tragedy of these Nazi-era cases is that in almost every non-legal respect time cannot be ignored: it makes investigations harder, it makes prosecutions riskier, it makes convictions less sound, and it creates the spectacle of doddery old men facing charges for actions committed three generations ago.

Whatever the legal rectitude of the proceedings that will soon start, time will make them seem the very opposite of what the law is supposed to achieve.