On March 17, John Demjanjuk died in a German nursing home. Demjanjuk spent 35 years of his life fighting charges that he served as a Nazi guard. In 2009, he was convicted in Germany as an accomplice to the murder of 27,900 Jews at the Sobibor extermination camp in occupied Poland.
For three years, I served as lead attorney on the U.S. government’s deportation case against Demjanjuk. Five years later, I believe that the Demjanjuk case demonstrates not the triumph of law, but law’s limitations.
I do not mean to suggest that Demjanjuk was falsely accused. His service as a guard at Sobibor is beyond dispute. The key evidence consists of a wartime German identity card bearing his name, his photograph and unique biographic details: his date and place of birth, his father’s name, the color of his eyes, the scar on his back. Credible experts have repeatedly examined the card. In every detail, from the ink and paper used to the signatures of Nazi officials, the card is unmistakably genuine.
Demjanjuk’s service at Sobibor and other Nazi camps is confirmed by six Nazi documents gathered from archives in three countries. Any claim that the documents were forged and then scattered across Europe and the former Soviet Union as part of a Soviet plot to frame Demjanjuk is absurd. Even Demjanjuk’s own lawyers abandoned that claim. In the second U.S. trial, his lawyers argued instead that the man the documents depicted was either Demjanjuk’s cousin or someone who had stolen his identity.
Unlike the concentration camps, which were sites for Jewish slave labor, Sobibor existed for the sole purpose of killing large numbers of Jews. As a Sobibor guard, Demjanjuk’s daily duties required that he march Jewish men, women, and children at gunpoint from trains to the gas chambers. His role was essential to the camp’s operation.
From a purely legal perspective, the German court correctly concluded that Demjanjuk was an accomplice to murder.
And yet, even if reasonable people accept that conclusion, they can disagree about whether the case against him was “just.” Demjanjuk long ago ceased to be a flesh-and-blood man in any public sense. Instead, he became a character in competing public narratives, a vehicle by which people of differing opinions argued about accountability for genocide.
For those who supported the prosecution, the Demjanjuk case proves that there is no statute of limitations for genocide, and that even the smallest cog is essential to the work of a genocidal machine. To some survivors and their families, the case provided a strong affirmation that their stories of suffering were important. To some prosecutors, the case became a contest of wills, a determined effort to prove the truth against one man’s stubborn denial.
Still others tell the story differently. To Demjanjuk’s family and supporters, the case represented an abuse of government power and a waste of government resources. And for many Ukrainians, the case involved a kind of “ethnic profiling.” There is a sense that Demjanjuk was a convenient scapegoat, that his role in the Holocaust did not justify a prosecution, and that someone who was not Ukrainian would have been treated differently.
All of this is a matter of ethics or opinion rather than fact. Neither side is entirely right or entirely wrong, and sometimes the lines are blurred. In the course of my work, I interviewed dozens of Holocaust survivors. A small but striking percentage told me that the prosecution of Nazi guards was pointless, that nothing could be gained from pursuing such men so many years after the fact.
And even for some who believe that Demjanjuk assisted in murder, the German prosecution is troubling. For decades, German prosecutors insisted that a man like Demjanjuk could not be convicted because he could not be tied to the murder of any specific person. As a result, thousands of German citizens who might have been prosecuted as accomplices to genocide were effectively given a full reprieve. Why, then, did the Germans choose to prosecute Demjanjuk at the last possible moment? And why a Ukrainian rather than a German citizen? Given Germany’s long history of neglect in similar cases, the criminal case against Demjanjuk was unjust and should not have gone forward.
I still believe that the U.S. government’s civil case against Demjanjuk accomplished some good. It deepened the public’s understanding of the Holocaust, and affirmed the U.S. government’s frequently shaky resolve to hold perpetrators accountable for atrocities. But in a deeper sense, the litigation accomplished little. Whatever good might have been done seems to be outweighed by questions we still cannot answer.
Whether Demjanjuk was “guilty” or “innocent” matters less than what we might have learned if Demjanjuk could speak freely about his experiences. He later became a husband and father, loved by his wife and children. How is it possible that such a man could do what Demjanjuk did, could close his eyes and heart to the suffering of the husbands, wives, sons, and daughters who were murdered with his assistance? What did he think about at night, knowing that hundreds of people had been murdered that day, and that more would be murdered tomorrow? And what, if anything, might have helped him refuse to participate?
In the trials against Demjanjuk, such questions were legally irrelevant. But if we truly wish to prevent future atrocities, we must learn the answers. Psychologists and moral theorists have been working on the issues, but we still understand far too little. The prosecution of John Demjanjuk ensured that he would tell us nothing. And now that Demjanjuk is dead, a critical piece of the truth has been buried with him, and we will never know.
From 1995 to 2007, Stephen Paskey served as a trial attorney with the United States Department of Justice. He currently teaches legal analysis, writing, and research at the SUNY Buffalo Law School in Buffalo, New York. The opinions expressed in this article are entirely his own. This article appeared originally in KYIV POST, 23 March 2012 and is republished here with the permission of the author.