Demjanjuk Case Illustrates Powerlessness of Law in Bringing Nazis to Justice

Haaretz's leading historian says that at times, it seemed that Demjanjuk was toying with the courts, amusing himself with a macabre game of cat and mouse.

No one better than John Demjanjuk illustrates the liberal legal system’s powerlessness in bringing Nazis and their collaborators to justice. If the system adhered to the rules that guide and restrict it, these criminals would almost never be punished; only a minority of those sentenced have enjoyed the protection that the liberal rules of the game grant the accused.

From the start, the Demjanjuk case went from one legal absurdity to another. In the United States he was not stripped of his citizenship because he murdered Jews, but because he lied on his immigration form. The fairness of the Israeli justice system and its adherence to its basic rules led to Demjanjuk’s acquittal due to reasonable doubt, after he had been sentenced to death.

John Demjanjuk leaves the court room in Munich during his trial, May 2011.

A few of the Israeli judges who convicted him, and a few who subsequently acquitted him, including Justice Aharon Barak, expressed their frustration. “If Demjanjuk was not Ivan the Terrible, then he was Ivan the not-so-terrible. He was there, he participated in the destruction,” Barak said. But everyone agreed that maintaining the legal rules was more important than the feeling that Demjanjuk deserved punishment.

A controversial legal construct made it possible for Demjanjuk to stand trial in Germany on charges of accessory to the murder of 27,900 people at Sobibor. He was sentenced to only five years in prison and was released immediately pending appeal. In this context, it sometimes seemed that Demjanjuk was toying with the courts, amusing himself with a macabre game of cat and mouse.

It seemed that only his family and a handful of neo-Nazis believed in his innocence, and perhaps two of his attorneys, the Israeli Yoram Sheftel and the German Ulrich Busch. The two lawyers took full advantage of the justice system’s weaknesses, so Demjanjuk died a free man.

His trial could have and should have repeatedly reminded everyone in uniform of their obligation to refuse patently illegal orders. That is the Holocaust’s main lesson. But that point was almost completely missing at all stages of Demjanjuk’s trials.

People who are convinced that Demjanjuk deserved punishment can take comfort in knowing that the last 25 years of his life were marked by constant harassment and prison terms, as he counted the attempts to convict him. From a legal perspective, his case was never decided. We may assume that Holocaust deniers will know how to take advantage of this fact.

From a moral perspective, it cannot be said that the Demjanjuk case signaled progress in the search for proper legal tools to prevent war crimes. So it seems that from the start, the effort was wasted.