Demjanjuk Trial to Break Legal Ground in Germany

The trial against suspected concentration camp guard John Demjanjuk is a legal first for Germany. For the first time, a person who was low on the chain of command is to be indicted, even though there is no proof of his having committed a specific offence. Other alleged henchmen have gotten off far more lightly.

The court stipulated that they were not to mention so much as a word about the case. Instead, Vera Demjanjuk, 84, told her husband John, 89, what she had planted in their garden at home. The telephone conversation, which lasted 20 minutes, was the only conversation to date between the Stadelheim Prison in Munich and Cleveland, Ohio. An official interpreter listened in on the conversation. "She hopes and believes that he will somehow return home," says John Demjanjuk, Jr., the couple's son.

That is unlikely to happen. His father is being detained in Bavaria, waiting for his trial to begin. US authorities deported Demjanjuk in early May, when he was flown to Munich on a chartered flight. When he arrived, a German investigating judge handed Demjanjuk the arrest warrant, which stated that the accused was "under strong suspicion" of aiding and abetting the murders of at least 29,000 people.

Demjanjuk is alleged to have worked in 1943 as a guard in the Sobibor death camp, and to have helped the Nazis commit mass murder against thousands of Jews. He has repeatedly denied the charges, and his family insists that it is the victim of a prosecution-obsessed justice system.

On July 3, prosecutors said that doctors had determined that Demjanjuk, who has been held in custody in Munich since May 12, was fit to stand trial. However, they imposed one condition, saying that his court appearances be limited to two 90-minute sessions a day. State prosecutors said that formal charges could be expected this month and that a trial could commence as early as the autumn.

The case against this alleged member of the SS is a first for the German legal system. For the first time, a foreign henchman from the lowest rung of the chain of command will be prosecuted, not because of his particularly gruesome behavior as a perpetrator of so-called "excessive acts," but because he helped keep the killing machinery running smoothly.

That won't be easy. Will the prosecution in the case, the Munich public prosecutor's office, be able to provide sufficient proof of his guilt? Can it demonstrate that he participated voluntarily in the campaign of murder?

A number of documents suggest that Demjanjuk was part of a group of about 5,000 foreign helpers -- people from the Baltics, Ukrainians and ethnic Germans living in other countries -- who the Nazis trained at the Trawniki training camp, east of the Polish city of Lublin, to commit mass murder in occupied regions. Nevertheless, there is no evidence that Demjanjuk killed out of murderous intent or greed. Instead, he was probably an ordinary henchman, like thousands of others. But German courts have been extremely lenient in the past when it has come to putting these Nazi helpers on trial. In fact, even their superiors almost always got off lightly.

In other words, the judiciary is planning nothing less than a radical break with a decades-long practice which was often perceived as offensive.

Responding to a complaint against Demjanjuk's detention filed by his attorney Ulrich Busch, the Munich Regional Court explained that the established practice of German courts in cases relating to SS overseers and guards in extermination camps "does not create a precedent." In the arrest warrant, it states that Demjanjuk, as a guard, was not compelled to participate in mass murder. "He could have deserted, as many other Trawniki men did," is the argument in the warrant.

For Demjanjuk's defense attorney, this line of argument "upends the entire postwar legal practice in Germany." The court must conduct its proceedings on the basis of evidence, and yet it presumably also wants to avoid being accused of inaction or perhaps even leniency toward former Nazis. All of this creates the impression that the German judiciary is using the Demjanjuk case, which has become well-known because of its previous history, to make up for past omissions.

Relatively Safe

Demjanjuk, a native of Ukraine, is not the first presumed Nazi helper that the United States has deported to Germany. More than 100 men have had their US citizenship revoked for concealing their Nazi past, and 27 of them ended up in Germany.

Dmytro Sawchuk, for example, traveled to Germany voluntarily in 1999 when he was about to be deported. US investigators accused the man, born in Poland of Ukrainian parents, of having participated in brutal ghetto evacuations after being trained in Trawniki, and of having supervised Jewish forced laborers in the Belzec extermination camp as they dug up thousands of bodies and incinerated them. The public prosecutor's office in Heidelberg, to which the case was assigned, terminated the proceedings against Sawchuk after three years, arguing that Germany could only prosecute the case if the "Republic of Poland, as the criminal investigation authority principally responsible for criminal prosecution," dispensed with extradition. Poland investigated the case itself, but later suspended its investigation. Sawchuk died in 2004.

Liudas Kairys, who also trained at Trawniki and was a senior guard at the Treblinka camp, was a rank above Demjanjuk's presumed rank in Sobibor. There was a lot of evidence against him from survivors and documents. He was sent to Germany in 1993, as he had hoped, after US authorities revoked his passport. From Kairys's perspective, it was the right decision. Investigation proceedings launched against the native Lithuanian in 1993 for murder were suspended six years later by the prosecution in the western city of Darmstadt. Kairys had died in the meantime.

In February 1982, the US attorney general asked his counterpart in Bonn for a stronger commitment. He wanted Germany to petition for the deportation of Nazi collaborators from Lithuania, Ukraine and Latvia who had been tracked down in the United States, and put them on trial in Germany.

But Bonn's justice minister turned down the request, arguing that deportation was only allowable in the case of crimes "that had been committed on the territory of the country submitting the request." And because of the statute of limitations, he argued, only murder cases could be prosecuted anyway.

The former Trawniki men living in Germany could also feel relatively safe, as long as there was no evidence of their having been Exzesstäter, in other words, people who committed excessively cruel acts. One such Exzesstäter was Treblinka guard Franz Swidersky, who was sentenced to a seven-year prison term in Düsseldorf. Another former guard in Belzec, who had held the rank of Zugwachmann, or platoon member, is spending his retirement in an idyllic village in the German state of North Rhine-Westphalia. He had testified about the Nazi death camps in two trials, but he was unwilling to talk about his experiences with SPIEGEL.

Those at the lower ends of the chain of command, and their supervisors, invoked the principle of Befehlsnotstand, a legal term applied to those who carried out a criminal command because they would otherwise have endangered their lives. The historian Jochen Böhler characterizes the defense as being the justice system's "top favorite for acquittals": Almost all of the accused alleged that they would have suffered if they had refused to follow orders -- and that they had only killed on command. More