The Demjanjuk Saga Final Round As the curtain rises on the trial of John Demjanjuk on November 30th, 2009

9 in Munich Germany, he is accused of being an accessory to the murder of 27,900 inmates of the Nazi Sobibor concentration camp during World War II. A look at the background to the case, the efforts to prosecute Demjanjuk over the last 30 years, the charge and the evidence the prosecution is expected to present, suggests this event will be more like a show trial, than a trial in an objective court where the rule of law will prevail. Media coverage so far has all but forgotten that in every criminal trial, including Demjanjuks, the basic presumption of innocence applies that the accused is presumed innocent until proven guilty. In other words, John Demjanjuk does not have to prove his innocence. The prosecution must prove his guilt beyond a reasonable doubt. Calling him a Nazi may garner headlines, but it will not change the fact that Nazi ideology precluded non-Aryans like Demjanjuk, who was a Ukrainian and therefore an Untermensh or subhuman, from being a part of the Nazi Party or a leader in Nazi Germany. As an Untermensh it is more likely Demjanjuk was a victim of the Nazi regime, than a persecutor acting on its behalf. Background John Demjanjuk was born in Soviet occupied Ukraine in 1920. As a young child Demjanjuk lived through the 1932-1933 Holodomor man-made famine inflicted on Ukraine by Stalin and the Soviet leadership in which millions of Ukrainians starved to death. Having survived such a Soviet atrocity, it is not surprising that with the later outbreak of World War II, John Demjanjuk was not exactly eager to join the Soviet Red Army. Nonetheless he was conscripted. In 1942 he was captured by the Germans and, according to him, languished during his wartime years as a German prisoner of war until 1945. After the war, Demjanjuk and others like him from Soviet Ukraine, became the target of Operation Keelhaul. Arising out of an agreement reached in Yalta between Stalin, Roosevelt and Churchill, Operation Keelhaul enabled Soviet Red Army officers, initially acting with Allied military support, to comb through displaced persons camps looking for anyone who could reveal the truth about the abhorrent Stalinist past. Of those who were caught and destined for Soviet repatriation some committed suicide, some were shot trying to escape and still others ended up in the Soviet Gulag. The fate of Aleksander Solzhenitsyn comes to mind in this context. Anyone who refused to return, or managed to evade Soviet capture, was accused by the Soviets of Nazi collaboration -

whether the allegation was true or false. Forcible repatriation became the terror of most displaced persons from the U.S.S.R., including Demjanjuk. The irony lay in the fact that it was the Soviets who actually collaborated with the Nazis, since they signed the Molotov-Ribbentropp non-aggression pact on the eve of World War II, carved up Poland with the Germans and were their allies for the first two years of the war. Nonetheless, such accusations levelled against displaced persons hindered those who were unjustly accused in their efforts to immigrate to the West, at least until the Allies finally came to an understanding of this Soviet intrigue. It was in this context that in 1952, Demjanjuk obtained permission to immigrate to the United States with his wife and young daughter. He settled in Cleveland, Ohio where he found work as a mechanic at a Ford auto plant. He then had another daughter and a son. Twenty- years passed. Accusations Arise According to Katie Engelhart in a recent story published in Canadas McLeans magazine, in 1975 Michael Hanusiak, editor of the New York-based Ukrainian Daily News, compiled a list of Ukrainians suspected of collaborating with Germans and presented it to what was then the U .S. Immigration and Naturalization Service. Demjanjuk was on that list. What Engelhart failed to identify was that the Ukrainian Daily News was nothing more than a pro-Soviet mouthpiece, at least according to Yoram Sheftel, an Israeli attorney who wrote about the incident in his book Defending Ivan the Terrible. The newspaper served as a convenient vehicle for the Soviet KGB to set off Ukrainians against Jews, particularly in the United States since at that time there was a fair degree of cooperation between the two groups and Russian dissidents like Andrei Sakharov all aimed at securing the release of various Soviet dissidents and the emigration of Soviet Jewry to Israel in an era of detente. It was then that Leonid Plyushch, the first Soviet Ukrainian dissident was released to the West and Soviet Jewry was making inroads to emigrate to Israel. In 1977 Demjanjuk was first accused of being Ivan the Terrible, a gas chamber operator in Treblinka death camp in Poland. From 1977 to1993 Demjanjuk faced a long series of court hearings through the American and then Israeli court systems all the way to the Supreme Court of Israel. In the course of those hearings he was found guilty and sentenced to death. In short, for 15 years while he sat in U.S. and Israeli jails, those who pursued and prosecuted Demjanjuk were positive that he was not in Sobibor as they claim now, but rather in Treblinka. But in 1993, after the defence was able to amass irrefutable evidence to the contrary, the Israeli Supreme Court lifted the sentence, dismissed the charges which incidentally included that he was in

Sobibor, and allowed him to return to the United States. In the meantime a U.S. Federal Appeals Court had opened up his case after determining that U.S. prosecutors were guilty of prosecutorial misconduct in failing to earlier reveal to the defence certain exculpatory evidence they had in their files. Demjanjuks U.S. citizenship was reinstated and he was allowed to go free once again. As it turned out John Demjanjuk was definitely not Ivan the Terrible of Treblinka. But those who had pursued Demjanjuk for 15 years swearing for certain he was in Treblinka and not anywhere else, then declared no, he was not in Treblinka, but rather he was in Sobibor! The process started all over again in 2002 and in 2009 Demjanjuk was once again on an airplane headed out of the country, this time to Germany. That brings us to now. The German Case The question arises why has Germany decided to target Demjanjuk in this, of all cases? And why now after 30 years of silence while the Demjanjuk case wound its way through the U.S. and Israeli courts? After all, there was no shortage of Nazis to prosecute no shortage of party members, Nazi government officials, army officers, camp commandants. Why, for example, didnt Germany prosecute Reinhard Gehlen, the former Nazi chief of eastern front intelligence and the other ex-Nazis he gathered in the West German Federal Intelligence Service (BND) that he headed after the war according to the Engelhart article? The answer is that Germany did not have the stomach to prosecute its own transgressors. While modern day Germany has paid dearly to disassociate itself from its Nazi past, paying out millions of dollars in reparations to Nazi victims, running effective educational, restorative and commemorative programs, it is also true that Germanys pursuit and conviction of its own Nazi transgressors has been not as impressive. Though German courts investigated over 100,000 cases, only some 6,500 accused were convicted and of these, most received rather light sentences. Not long ago Germany passed legislation that effectively provided an amnesty from prosecution for German Nazis, including SS concentration camp commanders and their German subordinates. But the amnesty did not include Untermenschen like Demjanjuk. That fact alone makes it hard to believe that this case is not a show trial. Consider the charge itself. Demjanjuk is charged not with war crimes or crimes against humanity, nor even of murder, but of being an accessory to murder. Not murder in Germany, but in Sobibor, that is to say in Poland. Not as a high-level official, but as a low ranking guard. Not as a German, but as a Ukrainian. Not of one, or a few victims - but of 27,900 victims! Adolf Hitler in

his 1925 autobiography Mein Kampf spoke of a lie so "colossal" that no one would believe that someone "could have the impudence to distort the truth so infamously". It seems almost as if this is the approach being used by the prosecutors in Munich and that German descendants appear ready to buy it once again today. Two Key Issues For thirty years Demjanjuk has maintained his innocence of all such charges. Yet now the German prosecutors who maintain that he was present in Sobibor, will use a Travniki identity card to attempt to prove this claim, and will argue that he was a volunteer there. While it is impossible in the context of an article like this to thoroughly deal with these charges, nonetheless they deserve at least some comment. In the book Defending Ivan the Terrible, Yoram Sheftel, the Israeli defence attorney in the successful Demjanjuk appeal points out that from the very beginning American authorities with the help of Israeli police prepared photo spreads to be presented to Sobibor survivors in which Demjanjuks picture was included for identification. Sheftel indicates that all ten Sobibor survivors in Israel, who were shown the photographs, recognized neither Demjanjuk nor Federenko as someone from the Sobibor death camp. Thus, at that early stage, it was clear that the Soviet plot to present Demjanjuk as a former guard at the Sobibor death camp was totally unfounded. So far as is known there is no witness who can establish that Demjanjuk even harmed someone much less murdered anyone, and only one statement taken by the Soviet KGB secret police of a Sobibor guard named Danylchenko who indicated that Demjanjuk was also there. Danylchenko later indicated he was tortured by the KGB and has since passed away without ever being cross-examined on the identification. That is the extent of the known German prosecution evidence on presence. In regard to the Travniki card, Sheftel indicates that on January 23rd, 1987 the original Travniki document that purports to indicate that Demjanjuk was in Sobibor was provided for examination to the German police forces main criminal-identification laboratory in Weisbaden, known for its initials as BKA. The laboratory analysts indicated that even after a cursory examination it was evident that the document was a forgery. They pointed out that the face in the photograph which the prosecution in Israel had identified as Demjanjuks had been posted on to the uniform using photomontage techniques; the picture was not originally attached to the card, but had been transferred from another document; there was no match between the seal on the Travniki picture and that on the document itself. Further German analysis was stopped by the Israelis with this initial report.

The Travniki document was also the subject matter of the evidence of Dr. Julius Grant, the worlds foremost forensic expert and the man who revealed the forgeries of the Mussolini diaries and the Hitler diaries. Basing himself on all the known signatures of Demjanjuk in the years 1947 to 1986 Dr. Grant testified that the Demjanjuk signature on the card differed from all the others in the way the Ds and Ms were formed and in the fact that in all other signatures the writing was continuous but on the card it was not. Further, Dr. Grant pointed out that there were two holes in the right side of the picture on the card whilst on the paper under the holes in the photograph there were no holes. Judging by the purple ink found inside the holes which was similar to ink used by the KGB and the nature of the spacing of the holes Dr. Grant concluded it was more logical to assume that the photograph was unstapled from some other Soviet document and attached to the card in the Soviet Union, than that it was originally attached in Travniki in 1942. Israeli officials refused to allow Dr. Grant to detach the photo from the card to make a conclusive finding, but he nonetheless concluded his evidence by saying The Travniki document cannot be an authentic document belonging to the defendant Demjanjuk. As for the contention that non-German guards in Nazi concentration camps were volunteers, the evidence indicates that basically such Wachmanner were chosen by the Germans based on physical fitness and told they could either become camp guards or remain in prisoner of war camps where they were mistreated or died. Those who tried to escape were shot. What choice is there in these alternatives? This assumes that the prosecution can establish beyond a reasonable doubt that Demjanjuk was in Sobibor in the first place. A tall order to fill. A Fair Trial According to the book Letters from Nuremberg, Tom Dodd, one of the key prosecutors who sought to bring leading Nazis to justice indicates that the prosecutors were as concerned about making sure that the trials were fair as they were about convicting the accused. So far there is little evidence that this is true in the case of John Demjanjuk. In fact, in their zeal to appease his adversaries, the prosecutors in Munich appear to be ready to abandon the rule of law and all reason. For this reason the John Demjanjuk trail is not just another Nazi war criminal trial, but it is a dangerous moment in German history In considering the effects of the Holocaust, we are often reminded of philosopher George Santayanas admonition that Those who cannot remember the past are condemned to repeat it. We are reminded that in

1933 Germany targeted the Jews as scapegoats for her political and economic problems while world leaders, including those who professed concern for reason and the rule of law, looked on in silence. Today the German leadership appears to be targeting Demjanjuk, and other Untermenschen like him, as scapegoats to slough off German guilt for what happened in the concentration camps of World War II. The question is whether the German people, and those who today profess concern for reason and the rule of law, will look on in silence again? For in the end this is not so much a trial of John Demjanjuk, as it is a trial of modern day Germany. Andriy J. Semotiuk is an attorney practicing in the area of international law in the filed of immigration. He is a member of the bars of California and New York in the United States and Ontario, Alberta and British Columbia in Canada. A former United Nations correspondent who was stationed in New York, Mr. Semotiuk is currently a member of the Los Angeles Press Club and resides in Los Angeles.