Toronto Star | 30May2011 | Dow Marmur

Marmur: The clash between justice and law

In 1988, two years after the Ukrainian-born John (Ivan) Demjanjuk was deported from the United States to Israel, he was identified as “Ivan the Terrible,” a vicious guard in Nazi extermination camps. He was sentenced to death, only the second such verdict in the country’s history. But five years later, Israel’s Supreme Court overturned the lower court’s decision due to doubts about Ivan’s real identity.

Not long thereafter I had the temerity to suggest to one of the five judges who let Demjanjuk go free that it seemed obvious the man was guilty of the murder of countless concentration camp inmates. The judge agreed but maintained that the legal evidence wasn’t sufficient to convict him.

[W.Z. The hypocrisy of Dow Marmur is boundless: There is no evidence that "Ukrainian-born John Demjanjuk" killed anyone; nevertheless he is "guilty of the murder of countless concentration camp inmates." The simplified message is: "You are Ukrainian; therefore, you are guilty."]

Later, the then president of the Supreme Court, Aharon Barak, was quoted as saying, “If Demjanjuk was not Ivan the Terrible, then he was Ivan the not-so-terrible. He was there, he participated in the destruction.”

However, that wasn’t supported by the law. Even if justice isn’t divine, it’s often beyond the human capacity to administer it fully and fairly. All that’s given to mortals, however committed and erudite they may be, is to make laws and apply them as best they can. When the legal evidence is inconclusive, justice may suffer, as it appears to have done in the Demjanjuk case.

It took another 18 years and massive legal wrangling before the 91-year-old Demjanjuk -- now making the most of his age and alleged infirmities by being brought into the court each day on a stretcher -- was again found guilty, this time not in Israel but in Germany.

Last month, a court in Munich convicted Demjanjuk of complicity in the murder of a very large number of prisoners in the Sobibor death camp and sentenced him to five years in jail. But he was immediately released pending an appeal. In view of his age and the slow pace of the law, it’s most unlikely that he’ll ever go to prison.

Tom Segev, the Israeli historian and journalist whose latest book is a biography of the famous Nazi hunter Simon Wiesenthal, described the sentence as grotesque “because a simple calculation shows that he will serve exactly one hour and 31 minutes for his part in the murder of each of the 28,060 Sobibor prisoners” who were his victims.

[W.Z. In my opinion, "Nazi hunter Simon Wiesenthal" was a fraud and one of the most evil persons of the twentieth century.]

The disparity between justice and law prompts the troubling question: Why has this accomplice to the Nazi mass murders got a sentence that befits someone who has perhaps committed manslaughter, not mass murder?

The ostensibly pious answer that true justice can only be administered by God and that the culprits will get their just deserts in hell is probably no consolation to the surviving relatives of the victims. And the claims that the time has come to close the books or that this “nice neighbour” from Cleveland must be innocent are equally offensive. It’s tempting to see the excuses as phony magnanimity at the expense of others.

Segev’s defence of the verdict despite its grotesque nature is to the point. He sees it as a deterrent “to illustrate to every young person in uniform that in all places, and under all circumstances, there are patently illegal orders that must not be obeyed.” Even if justice is beyond our grasp, the law is within our reach. It must be applied under all circumstances, however long it takes and however inadequate the outcome.

Last week, after 16 years’ ostensible search, Serbian security officers arrested Ratko Mladic, the military leader accused of murdering 8,000 Muslims in Srebrenica during the Balkan wars. He, too, will now have his day in court.

Dow Marmur is rabbi emeritus at Toronto's Holy Blossom Temple. His column appears every other week.