● In Munich, the seventeen-month trial of ninety-year-old Ivan (John) Demjanjuk, which may have been one of the last trials dealing with Adolf Hitler’s Third Reich, ended with Demjanjuk’s conviction in May 2011. This trial was a novelty, marking one of the first times in German legal history that a non-German national had to stand trial for the murder, during the Third Reich, of non-German nationals that took place outside of Germany proper.
● Formally this trial was a domestic one. The jurisdiction of the Munich District Court was based on the view that Demjanjuk had been a German civil servant. But this also was an international trial, in the sense that Demjanjuk was tried as a non-German national held accountable for the murder of non-Germans. The judges in such hybrid cases – both domestic and international – have to describe the atrocities and express themselves on the responsibility of the defendant. This means that the traditional division of labor between the realm of the law and the realm of history-writing sometimes no longer exists.
● In expressing the view that all of the men working in extermination facilities such as Belzec, Treblinka, and Sobibor were accomplices in mass murder, the Munich judges stated that the German legal system should not have ignored the non-German Trawniki foot soldiers of the Final Solution for such a long time. This statement also is tantamount to asserting that in the past the German legal system defined complicity in a too-restricted way, which clearly has not stood the test of time.
● If Demjanjuk appeals successfully, it will constitute a serious blow to the authority of the Munich District Court. This, in turn, will raise doubts as to whether nonspecialized domestic courts should in the future deal with high-profile trials that involve atrocities perpetrated a long time ago in an altogether different social setting.
In Munich, the seventeen-month trial of ninety-year-old Ivan (John) Demjanjuk, which may have been one of the last trials dealing with Adolf Hitler’s Third Reich, ended with Demjanjuk’s conviction in May 2011. The written verdict – a lengthy document of 220 pages – was recently made available by the judges.
In this document the judges of the Munich District Court explained who Demjanjuk was, where he worked, and why they were sending this man to prison for five years as an accomplice in mass murder in the Sobibor extermination camp in 1943.
The publication of the written verdict makes it possible to review on what basis Demjanjuk was indicted; to discuss the basic issues of this trial and how the judges decided them; and to look back on the role that expert witnesses played during these proceedings.
The Munich Indictment
John Demjanjuk was born in 1920 in the Soviet Union, in Ukraine. He emigrated to the United States after World War II. When applying for emigration, Demjanjuk wrote that during the war he had worked as a truck driver in Sobibor, a Polish village.
Demjanjuk stood trial in Israel in the 1980s. He was suspected of having been the man nicknamed “Ivan the Terrible” in Treblinka. This man had operated the engines of the gas chambers and was responsible for the deaths of hundreds of thousands of human beings. Given the death penalty by the Jerusalem District Court in 1988, Demjanjuk appealed, maintaining that he was a victim of mistaken identity. He won the appeal, and in 1993 the Israeli government sent him back to the United States.
A new German investigation started in June 2008. The preparation of the indictment took two prosecutors, Mr. Thomas Walther and Mrs. Karin Goetze, four months. Demjanjuk was sent to Germany in May 2009, and his trial began on 30 November 2009, on the basis of an indictment written by the Munich prosecutor Dr. Hans-Joachim Lutz. He maintained that Demjanjuk worked as a simple guard, holding the lowest rank, in another extermination camp, Sobibor, in the period March-September 1943, where in the period May 1942-October 1943 an estimated 170,000 Jews were murdered. Nineteen percent of the victims of Sobibor were deported from the occupied Dutch territories; 23 percent of Dutch Jewry was murdered there.
This trial was a novelty. It marked one of the first times in German legal history that a non-German national had to stand trial for the murder, during the Third Reich, of non-German nationals that took place outside of Germany proper – namely, in Poland. Formally this part of Poland was not annexed by the Third Reich but constituted a separate political entity, the so-called Generalgouvernment.
This trial with the “no-frills” charge of complicity in murder was exceptionally novel in the sense that the indictment described the mass murder in Sobibor as a single process, implicating all those present in Sobibor in the extermination. For the first time, a person who was low in the chain of command was indicted even though there was no proof of him having committed a specific offense (apart from his alleged complicity). According to the indictment all the men working there – about twenty to thirty German men and one hundred to one hundred and fifty East Europeans trained in the Trawniki camp – herded the Jews to their death.
In the indictment the Munich prosecutor wrote that Demjanjuk was a German civil servant who was trained in the village of Trawniki near Lublin, also in eastern Poland, like some five thousand other East Europeans who were trained there. This status as a civil servant meant that German judges had jurisdiction.
The five thousand men from Trawniki served as the “foot soldiers” of the Holocaust. Whereas these Trawniki men were not brought to trial in Germany, in the Soviet Union numerous trials of Trawniki men took place. One of these defendants, Ignat Danilchenko, stated in the Soviet Union in 1949 that he had seen Demjanjuk in Sobibor herding Jews to their death. This is the only statement by an eyewitness that he had seen Demjanjuk in Sobibor.
The authorities relied on Dr. Peter Black, formerly with the Office for Special Investigations in the U.S. Justice Department and now with the U.S. Holocaust Memorial Museum in Washington, in maintaining that, while many Trawniki men left their ranks without permission of their superiors, Demjanjuk evidently stayed put in Sobibor of his own accord. He therefore had the intention to work there; in other words, he was a willing foot soldier.
In a direct reaction to Demjanjuk’s conviction in Jerusalem in 1988, a German expert, Mrs. Helge Grabitz, senior public prosecutor in Hamburg, had previously written that the Trawniki men erroneously believed that their refusal of orders would lead to their death at the hands of their German masters. Hence, the Trawniki men were not responsible for their actions in a legal sense. The logical conclusion was that there was no point in bringing them to trial.
Now that no more than two other Trawniki men were alive and living in Germany, the indictment of Demjanjuk dealt in detail with the extermination in Sobibor of twenty-eight thousand persons. During the period in 1943 when Demjanjuk allegedly worked there, some forty-five thousand Jews were murdered there, most of whom originated from the occupied Dutch territories. Only the transports from Holland have been recorded in transport lists. Only the personal identities of the victims from Holland are known, and some of the identities of the victims in a transport of two hundred persons from the Polish town of Izbica.
None of the very few survivors of Sobibor still alive today have memories of Demjanjuk. The German authorities wrote that they did not need such witnesses because the historical documentation would suffice to answer the following questions: was Demjanjuk there? Were Jews murdered there in that period? Did all of the Trawniki men herd Jews to their death? Would it have been possible for Demjanjuk to leave Sobibor? What did the German commanders do with Trawniki men who abandoned their duties, tried to escape, and were caught?
Was This Trial a Domestic or an International Trial?
Formally this trial undoubtedly was a domestic one. The jurisdiction of the Munich District Court was based on the view that as a Trawniki man working in Sobibor, Demjanjuk was a German civil servant. Furthermore, the charge brought against him – complicity in murder – was a traditional charge; it was not closely connected to international criminal law.
But this also was an international trial, in the sense that Demjanjuk was tried as a non-German national held accountable for the murder of non-Germans. The heart of this matter is that – as international trials tend to do – the Demjanjuk trial was a high-profile one that dealt with atrocious deeds that took place outside of Germany decades ago, and that these atrocities were perpetrated in a society that is very different from the one in which the trial took place.
In international trials the documentary evidence is relatively scarce. This means that the prosecutor needs much time to prepare the indictment. It may take many months, as it did in this case. In preparing the indictment the prosecutor of international crimes often is dependent on eyewitnesses whose reliability is not easy to assess. In this respect his position is not unlike that of an experienced reporter.
And if these eyewitnesses are lacking – as they were during the Demjanuk trial with the exception of the statement by Danilchenko – the prosecutor will need expert witnesses, who are not eyewitnesses but provide legal testimony in the form of professional opinions. At the end of the day, the prosecutor has no other option than to rely on the reputation of his eyewitnesses and his expert witnesses. In other words, in such trials the prosecutor’s position is weaker than in run-of-the-mill domestic trials. The stakes, however, are higher because preparing the indictment has taken so much time. And the trial itself is high-profile.
In such trials the positions of the defendant and his defense also are relatively weak. The media lack sympathy for the defendant, and the defense only has two viable options: to deny that the defendant was present and to deny that the defendant was responsible.
According to the strategy of the defense in this trial, Demjanjuk was to remain silent during the trial as far as his role in Sobibor was concerned. His defense maintained that the historical documentation placing him in Sobibor was forged and that he was never there; or, if he was, he was in no way involved in the gassings; or, if he was involved in them, he stayed there because he knew or had heard that deserting Trawniki men were put to death by their German masters.
This last line of defense was somewhat theoretical, mainly because Demjanjuk did not speak about his role in Sobibor. It is not so easy to maintain that a defendant acted out of fear if that defendant is not willing to admit that he acted at all. The defense could have opted for another strategy of having the defendant admit that he worked in Sobibor, but did so because his German masters had scared him to death. But that was not the path the defense wanted to take.
The judges in such hybrid cases – both domestic and international – have to reinterpret their role as well. It is their task to describe the atrocities and express themselves on the responsibility of the defendant. In doing so, individual judges have often done an expert job – in Nuremberg, in Jerusalem in the Eichmann trial, and in The Hague at the International Criminal Tribunal for the Former Yugoslavia.
This writing of history by judges also has limitations, however. Successful as it often is, it is ultimately essentialist and finalist. The starting point of the judge-turned-historian is the atrocity that has taken place. Judges tend to see the road leading to that atrocity as a direct one, not a crooked one. Even more important, the law deals with individuals. If members of a group sit in the defendant’s dock, they are sitting there as individuals. Judges, however, are not used to deal with the group dimension of mass atrocities; this, obviously, is because (European) prosecutors usually make do without charges in which the group dimension is required.
The Crucial Questions in the Courtroom
The crucial questions in these proceedings were: did the defendant work in Sobibor? If so, were Jews murdered there during that time? Was there a division of labor? Was it possible for the men from Trawniki to flee the camp? And if they did, and were caught, were they then murdered by their German masters?
Crucial question number 1: Did the defendant work in Sobibor?
According to the verdict, Demjanjuk worked in Sobibor. The authenticity of Demjanjuk’s Trawniki identity card was discussed at length in the courtroom. The German expert witness Dr. Anton Dallmayer, who compared this identity card with three other identity cards belonging to Trawniki men, found these papers to be authentic. The list of Trawniki men sent to Sobibor in March 1943 – a list that included Demjanjuk’s name – was authentic as well. The judges concluded this also on the basis of the testimony of the forensic expert Larry F. Stewart, who checked the typewriting and paper quality of twelve Trawniki identity cards.
That the list of Trawniki men sent to Sobibor was authentic in the sense that these men were actually sent to Sobibor was confirmed by the testimony of Danilchenko. In 1949, in the Soviet Union, Danilchenko identified Demjanjuk as one of the guards who had herded the Jews to their death. The judges wrote that this statement by Danilchenko was accurate, as it was confirmed by other statements made by other Trawniki men in the Soviet Union. Generally speaking, the judges found these statements to be accurate descriptions of their work and of their knowledge of the fate of the deported Jews.
Crucial question number 2: Were Jews murdered in Sobibor in the period of March-October 1943?
According to the verdict, there were Jews murdered in Sobibor while the defendant worked there. Most of the Jews murdered in Sobibor while Demjanjuk was working there were deported to Sobibor from Westerbork, a transit camp in the occupied Dutch territories. Their personal data (name, date and place of birth) were typed on transport lists. These lists have been published by Dr. Jules Schelvis.
I have testified as a witness on the authenticity of the Dutch transport lists, having been challenged by the defense as an expert witness. Previously I had written a report for Prosecutor Dr. Lutz, in which I explained how these transport lists were drafted by the Jewish camp staff in the transit camp of Westerbork and how the final transport lists had been made. The prosecutor invited another Dutch expert witness, Dr. Regina Grüter. She testified that these lists were authentic as well, and the judges used my previous statement as a corroboration of what she said. Dr. Grüter added something highly important: she had proved that a number of the victims deported from Holland had the German nationality. This matter had some bearing on the problem of jurisdiction.
Crucial question number 3: Was there a division of labor?
The verdict stresses that there was no division of labor. Two survivors of Sobibor, Thomas Blatt and Philip Bialowitz, have testified that there was no division of labor there and all of the men trained in Trawniki herded Jews to the gas chambers. During their trials in the Soviet Union many former Trawniki men admitted the same. The noted German historian Dr. Dieter Pohl testified as an expert witness on the operation of the Sobibor extermination camp and the role played by the Trawniki men there.
On the basis of all of these statements, the judges wrote that as a guard Demjanjuk was contributing in a concrete way to the destruction of the deportees, for Sobibor had no other purpose. It may be true that the judges did not know Demjanjuk’s exact whereabouts in Sobibor during the killings, but he was “eingebunden in das Gesamtgefüge der Bewachungsorganisation” (he was a constant part of the overall guard organization). As in Treblinka and Belzec, in Sobibor each and every guard was an accomplice, as they formed parts of a killing machine.
Crucial question number 4: Was it possible to flee from Sobibor?
The debate on the possibilities of fleeing, and on the punishment of arrested deserters, was a long one. These were essential issues as far as the defendant’s culpability was concerned. The judges maintained that many Trawniki men fled. They also wrote that it was possible to flee from Sobibor, as two other Trawniki men had done so – Konstantin Dimida and Iwan Kakarasch on 1 July 1943.
Dr. Dieter Pohl testified as an expert witness. He stated that those men from Trawniki who left their duties without permission of their superiors and were arrested were indeed put to death, if they took a firearm with them on their flight. According to Pohl, the deserters who left unarmed were not shot but merely punished. The judges, who read a number of documents on the desertions of Trawniki men aloud in the courtroom, maintained that Demjanjuk was aware of this. They wrote that Demjanjuk was morally obliged to make the effort of trying to flee (without a firearm); but, obviously, he did not.
Clearly, then, in all four of the decisive issues in this trial, expert witnesses played an important role. This trial, therefore, is an example of the central role expert witnesses may play in trials in which there are no eyewitnesses.
The experts, however, are not the only ones in such trials who are redefining their roles; so are the prosecutors, who are dependent on the reputation of the expert witnesses. And so are the judges, who have to tell historical tales. They have to solve very new and relatively underresearched historical problems – such as the matter of how Trawniki men were treated by their superiors after they had been arrested as deserters, with or without a firearm. This means that the traditional division of labor between the realm of the law and the realm of history-writing sometimes no longer exists, and may have become a historical phenomenon in itself.
In expressing the view that all of the men working in extermination facilities such as Belzec, Treblinka, and Sobibor were accomplices in mass murder, the Munich judges stated that the German legal system should not have ignored the non-German Trawniki foot soldiers of the Final Solution for such a long time. This statement also is tantamount to asserting that in the past the German legal system defined complicity in a too-restricted way, which clearly has not stood the test of time.
How Will the Story of John Demjanjuk End?
The day after the verdict was delivered in its oral form, in May, Demjanjuk was sent to an old-age home in Germany, pending the appeal. This is where he is now, in a small village in Bavaria. If he remains in good health, regularly receiving blood transfusions, he will live to see the appeal stage. It appears likely that he will survive until that day. The issue at stake for him will be whether he will have to return to prison for some sixteen months. One of the issues in the appeal stage will certainly be whether or not Trawniki men in extermination camps acted out of fear.
In all probability Demjanjuk hopes that he will be as successful in the German appeal stage as he was in Israel in 1993. If he is, it will constitute a serious blow to the authority of the Munich District Court. This, in turn, will raise doubts as to whether nonspecialized domestic courts should in the future deal with high-profile trials that involve atrocities perpetrated a long time ago in an altogether different social setting.
And that is not the only matter at stake during the appeal stage. Also at stake is whether the German legal system of the past was not seriously flawed in ignoring the Trawniki foot soldiers, and in interpreting the—admittedly perennial—problem of complicity in an overly restricted fashion.
Prof. Johannes Houwink ten Cate studied contemporary and socioeconomic history at the University of Utrecht, the Netherlands. From 1985 to 2002 he worked as a researcher at the Netherlands Institute for War Documentation. Since 1989 his primary topic of interest has been the Nazi persecution of the Jews in the occupied Dutch territories. Since 2002 he has been professor for Holocaust and Genocide Studies at the University of Amsterdam.
A previous draft of this article was read by Mr. Manuel Bloch (the Dutch member of the legal team of the co-plaintiffs in this trial), Dr. Wichert ten Have, and Prof. Mr. Harmen G. van der Wilt.
Landgericht München II, 1 Ks 115 Js 12496/08, Urteil der 1. Strafkammer des Landgerichts München II als Schwurgericht in der Strafsache gegen Demjanjuk, John, wegen Beihilfe zum Mord, Munich 2011, 4 [German].
On this region, see Amir Weiner, Making Sense of War: The Second World War and the Fate of the Bolshevik Revolution (Princeton: Princeton University Press, 2001), passim.
See Johannes Houwink ten Cate, “The Activities of Wachmann John Demjanjuk (1940-1952),” www.chgs.nl, 26; Urteil, 173.
For what is by far the best overview of this complicated case, see Gitta Sereny, “The Case of John Demjanjuk,” in Sereny, The German Trauma: Experiences and Reflections, 1938-2000 (London: Allen Lane, 2000).
Jules Schelvis with Bob Moore, Sobibor: A History of a Nazi Death Camp (London: Berg, 2007), passim.
There are—as far as I know—two exceptions: a trial of three Lithuanians and the trial of the ethnic German Franz Swidersky.
“A Very Ordinary Henchman: Demjanjuk Trial to Break Legal Ground in Germany,” Der Spiegel, 10 July 2009. See Landgericht Bonn, 8 Ks 3/62, 23 Juli 1965, in Irene Sagel-Grande, H. H. Fuchs, and C. F. Rüter, eds., Justiz und NS-Verbrechen. Sammlung deutscher Strafurteile wegen nationalsozialistischer Tötungsverbrechen 1945-1966, Bd. XXI, Lfd. Nr. 594 [German]. The other recent German court cases against German and non-German Nazi criminals do not deal with complicity in murder but with co-perpetratorship (Mittäterschaft) in murder.
For the indictment, see www.xoxol.org/dem/munich-docs/munich-docs-index.html. See also “Son of Nazi Victim Testifies at Demjanjuk Trial,” Associated Press, 1 December 2009; “Alleiniger Daseinszweck, Juden umzubringen,” interview with Prof. Dr. Cornelius Nestler, Der Spiegel, 14 February 2010 [German].
Peter Black, “Die Trawniki-Männer und die ‘Aktion Reinhard,’” in Bogdan Musial, ed., “Aktion Reinhard”. Der Völkermord an den Juden im Generalgouvernement 1941-1944 (Osnabrück: Fibre Verlag, 2004) [German]; David Alan Rich, “Reinhard’s Footsoldiers: Soviet Trophy Documents and Investigative Records as Sources,” in John K. Roth and Elizabeth Maxwell, eds., Remembering the Future: The Holocaust in an Age of Genocide, vol. 1 (Houndmills, Basingstoke and New York: Palgrave, 2001). Further publications by Peter Black include Black, “Police Auxiliaries for Operation Reinhard: Shedding Light on the Trawniki Training Camp through Documents from behind the Iron Curtain,” in David Bankier, ed., Secret Intelligence and the Holocaust (New York: Enigma Books/Jerusalem: Yad Vashem, 2006), 327-366; Black, “Askaris in the ‘Wild East’: The Deployment of Auxiliaries and the Implementation of Nazi Racial Policy in Lublin District,” in Charles Ingrao and Franz A. J. Szabo, eds., The Germans and the East (West Layette, IN: Purdue University Press, 2007), 277-309. Black’s most recent contribution on the Trawniki men was published early in 2011; Black, “Foot Soldiers of the Final Solution: The Trawniki Training Camp and Operation Reinhard”, Holocaust and Genocide Studies 25, 1 (2011): 1-99. This is an extended and richly annotated version of the article Black published in 2004.
See www.nizkor.org/ftp.cgi/people/d/danilchenko.ignat.t. See also “Doubt Cast on Auto Worker’s Nazi Ties,” CBS News, 18 March 2010. On the credibility of Soviet legal sources, see Alexander Victor Prusin, “‘Fascist Criminals to the Gallows!’: The Holocaust and Soviet War Crimes Trials, December 1945-February 1946,” Holocaust and Genocide Studies 17, 1 (2003): 1-30; Tanja Penter, “Local Collaborators on Trial: Soviet War Crimes Trials under Stalin (1943-1953),” Cahiers du Monde russe 49, 2-3 (April-September 2008): 1-24.
See note 9.
Helge Grabitz, “Iwan Demjanjuk zum Tode verurteilt. Anmerkungen zur strafrechtlichen Verantwortung der <>,” Tribüne. Zeitschrift zum Verständniss des Judentums, 27, Heft 108 (1988), 176-182 [German].
Apart from Demjanjuk these men were Samuel Kunz, a guard in Belzec (now deceased) and Karpo Nagorny, an alleged guard in Flossenbürg.
For estimates, see Schelvis and Moore, Sobibor.
There is one exception, Alexei Vaitzen (Weitzen) who lives in Ryazan in the Russian Federation, but the condition of his memory is unclear. Furthermore, it is surprising that Vaitzen did not come forward as a possible witness at an earlier point; “Russian Says He Recalls Demjanjuk from Death Camp,” Reuters, 12 February 2010.
Manuel Bloch, Johannes Houwink ten Cate, and Harmen van der Wilt, “Iwan Demjanjuk voor de rechtbank”, Nederlands Juristenblad, December 2010, 2283-2288 [Dutch].
Communication to the author by Mr. Manuel Bloch.
Mark Maathuis, “Advocaat tegen de duivel”, interview with Manuel Bloch, Nederlands Juristenblad, 14 October 2011, 21-23 [Dutch].
Ibid., 176-177. See also note 10.
Jules Schelvis, Vernietigingskamp Sobibor. De Transportlijsten (Amsterdam: De Bataafsche Leeuw, 2001) [Dutch].
Ibid., 116, 199.
Ibid., 141, 183.
See note 20.