In Memory of John Demjanjuk

By Andriy J. Semotiuk

Continued from previous Issue 15, The New Pathway, April 12, 2012.

Danilchenko Statement

Given that Demjanjuk was accused of being an accessory to the murder of 27,900 victims, it would seem that such a guard would have been well known and readily identifiable by survivors of Sobibor whose fate would have been in his hands. Yet according to Sheftel, of the dozen Jewish survivors of Sobibor throughout the world who were questioned from 1976 onward, by both the American investigators and the Israeli authorities, none identified Demjanjuk’s picture as that of a guard from Sobibor. This was significant since it contradicted the evidence of Ignat Danilchenko who claimed he served with Demjanjuk in Sobibor and identified Demjanjuk’s picture when Danilchenko was interrogated in 1979 by the Soviet KGB. Some time after his interrogation, Danilchenko said he was tortured by the KGB which tended to discredit his assertions. He passed away without ever being cross-examined by the defence on the identification or his claims.

Transfer Lists

There was evidence led by the prosecution that Demjanjuk’s name appeared on Nazi transfer lists assigning him to Sobibor.

There was some confusion about this since Demjanjuk’s name also appeared on another transfer list dealing with Lublin, apparently punished for unlawfully leaving a camp there. Was he at both camps?

The Court’s Conclusion that Demjanjuk was at Sobibor

All the foregoing evidence, according to the court, established that Demjanjuk was indeed present in Sobibor. But this alone was not enough to convict Demjanjuk of the crime as alleged. The prosecution needed to prove complicity in murder.

A fundamental principle of Western jurisprudence is individual responsibility for one’s actions. In criminal law, this requires that the charges against the accused, and the accused’s responsibility for the crime, must be proven beyond a reasonable doubt. Since Demjanjuk could not be accused of any specific criminal act, he had to be found guilty not of murder, but of being an accessory to murder. And since he was not a German and therefore effectively amnestied by German law, and never a Nazi, he was tried as a non-German because he allegedly worked for the Nazis. Since there was no direct evidence of guilt, the case had to be proven on circumstantial evidence.

To prove a circumstantial case, the evidence presented had to lead to a reasonable conclusion that Demjanjuk was guilty - and no other reasonable conclusion. That is the standard of proof required in such circumstantial cases under criminal law. But others who were in Sobibor, German guards, such as Erich Lachmann, Heinz-Hans Schutt, Heinrich Unverhau, Robert Juhres,  Ernst Zirke, or Erwin Lambert were charged but found not guilty according to the Holocaust Archive and Research Team who list these names on their web site. If they were there, did not try to escape due to risk of death, and were not part of the ‘killing machine’, then that could also have been true for Demjanjuk. If anything, the evidence in the Demjanjuk case supported a reasonable inference that he was innocent, even assuming that he was in the camp, precisely because he was NOT German and therefore, likely did not want to take part in the work of the camp.

To many Ukrainians, the Demjanjuk case demonstrated that the World did not understand that Ukraine was a victim of both the Soviets and the Nazis during World War II, and of the Holodomor before the War.

Their exasperation over its many twists and turns grew over time.

For many Jews, Demjanjuk’s case represented their last opportunity to once again broadly publicize the evils of Nazi Germany and its role in the Holocaust. They made the most that they could of it.

In the end, however, this case was not really about the trial of Ivan Demjanjuk. It was about the trial of modern-day Germany, of Israel before that, and by extension, since the case started there, of the United States. In their desire to condemn the transgressions of Germany’s past, the prosecutors and judges in the Demjanjuk case, from its beginnings in the United States to Munich, failed to follow elementary rules of fairness, due process and the rule of law. They employed immigration instead of criminal rules to lower the standard of proof for the prosecution, they knowingly withheld key evidence from the defence and were found by a U.S. appeals court to have committed prosecutorial misconduct, they deported instead of extradited Demjanjuk to Germany, they invented new theories of guilt unknown to the law and detached from personal responsibility, and they allowed the case to be politicized to become a show trial over and over again. The irony of the Demjanjuk case lies in the fact that despite all these efforts to convict him, according to German law, no conviction stands until all appeal rights have been exhausted. In other words, despite what the international media may say, according to German law, and Israeli and American law for that matter, Demjanjuk was never found guilty of any crime. His long nightmare is finally over. At long last he can now rest in peace.

Andriy J. Semotiuk is an attorney practising in the area of international law focusing on immigration. He is a member of the bars of New York and California in the United States, and of Ontario and British Columbia in Canada. A former United Nations correspondent who was stationed in New York, Mr. Semotiuk now practises law and resides in Toronto.