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John Demjanjuk
John Demjanjuk 3.jpg
Demjanjuk (centre) hearing his death sentence on 25 April 1988 in Jerusalem. The guilty verdict was later overturned.
Born
Ivan Mykolaiovych Demjanjuk

(1920-04-03)3 April 1920
Died17 March 2012(2012-03-17) (aged 91)
OccupationAutoworker
Criminal chargeWar crimes, crimes against humanity
Criminal penalty
  • Death (overturned)
  • Five years imprisonment (annulled upon his death)
Spouse(s)Vera[1]
Children3
Military career
Allegiance Soviet Union
 Nazi Germany
Service/branchRed Army flag.svg Red Army

John Demjanjuk (born Ivan Mykolaiovych Demjanjuk; Ukrainian: Іван Миколайович Дем'янюк; 3 April 1920 – 17 March 2012) was a Ukrainian-American autoworker accused of war crimes and crimes against humanity for having allegedly served as a guard at Nazi extermination camps during World War II. Legal cases surrounding his alleged participation in the Holocaust began during the 1970s and continued until his death in 2012.

Demjanjuk was born in Ukraine and grew up in the Holodomor famine. During World War II, he was drafted into the Soviet Red Army before being captured by the Germans in 1942 and held as a prisoner of war. According to evidence brought against him in a German court, he served as a guard at the Sobibor extermination camp and at least two concentration camps. In 1952, he emigrated from West Germany to the United States.[2][3] He took up residence in Cleveland, Ohio, where he worked in an auto factory until his retirement.

Starting in the 1970s, Demjanjuk was accused of having been a Trawniki man, and based on eyewitness testimony by Holocaust survivors, he was identified as the notorious and savagely violent Treblinka extermination camp guard, "Ivan the Terrible".[4] These accusations culminated in Demjanjuk's extradition to Israel in 1986. In 1988, Demjanjuk was convicted and sentenced to death. Demjanjuk maintained his innocence throughout the trial, claiming that it was a case of mistaken identity. In 1993, the verdict was overturned by the Israeli Supreme Court, based on new evidence that cast reasonable doubt over the identity of "Ivan the Terrible".[5] Although the judges agreed that there was sufficient evidence to show that Demjanjuk had served at Sobibor, Israel declined to prosecute. In September 1993, Demjanjuk returned to Ohio.

In 2001, Demjanjuk was charged in Germany with over 27,900 counts of acting as an accessory to murder: one for each person killed at Sobibor during the time he was alleged to have served as a guard there.[6][7][8] He was deported from the US to Germany in 2009.[9][10] On 12 May 2011, Demjanjuk was convicted pending appeal and sentenced to five years in prison. According to historian Lawrence Douglas, in spite of the serious missteps along the way, the German verdict brought the case "to a worthy and just conclusion".[11] After the conviction, Demjanjuk was released pending trial by the German Appellate Court. He lived at a German nursing home in Bad Feilnbach,[7] where he died on 17 March 2012.[12] Because his appeal had not been completed, the interim conviction was annulled, meaning that Demjanjuk has no criminal record[13][14] and is still legally presumed innocent.[15]

Background[edit]

Demjanjuk was born in Dubovi Makharyntsi,[16] a farming village in the western part of Soviet Ukraine, and he grew up during the Holodomor famine.[17][18] He reportedly got along well with the Jewish families living nearby.[19] Before joining the Soviet army, Demjanjuk worked as a tractor driver on a Soviet collective farm. In 1940 Demjanjuk was drafted into the Red Army.[20] After a battle in Eastern Crimea he was captured and became a prisoner of war (POW) and was moved to a German concentration camp for Soviet Russian POWs in Chełm.[21] According to the findings of his vacated 2011 conviction, it was then that Demjanjuk volunteered to be sent to the Trawniki concentration camp division used for the training of Hiwi guards recruited from Soviet POWs, later allegedly serving in Majdanek, Sobibor, and Flossenbürg concentration camps, and during the Warsaw Ghetto Uprising.

In 1948, Demjanjuk registered as a displaced person. In his application, Demjanjuk claimed to be a refugee and requested transfer to Argentina. His application stated that he had worked as a driver in the town of Sobibór in eastern Poland, after which the nearby Sobibor extermination camp was named.[22] Demjanjuk later claimed this was a coincidence and that he picked the name Sobibor from an atlas owned by a fellow applicant because it had a large Soviet population.[23] In an interview regarding Demjanjuk, historian Hans-Jürgen Bömelburg noted that war criminals sometimes tried to escape justice after 1945 by presenting themselves victims of Nazi persecution, rather than as perpetrators.[24] Demjanjuk found a job as a driver in a displaced persons camp in the Bavarian city of Landshut, and was subsequently transferred to camps in other southern German cities until he ended up in Feldafing near Munich in May 1951.[25][26] He met Vera Kowlowa in a displaced persons camp and married her there.[27]

Demjanjuk, his wife and their child arrived in New York City aboard the USS General W. G. Haan on 9 February 1952.[28][11] He and his wife moved to Indiana with their daughter and then to the Cleveland suburb of Seven Hills. He became a United Auto Workers (UAW) diesel engine mechanic at the nearby Ford automobile factory[29] where a friend from Regensburg, Germany had found work.[11] Demjanjuk and his wife, who began work at a General Electric facility,[11] later had two more children. On 14 November 1958, Demjanjuk became a naturalized citizen of the United States.

In 1975, Michael Hanusiak, an editor of Ukrainian News, presented a list of ethnic Ukrainians living in the United States suspected of collaborating with Germans in World War II to what was then the US Immigration and Naturalization Service; Demjanjuk's name was on that list.[30] Soviet newspapers and archives had provided the names during Hanusiak's visit to the Soviet Union in 1974.[31] Hanusiak also handed over an alleged copy of a Nazi ID card issued to Demjanjuk at Trawniki.[32] In August 1977, the Justice Department submitted a request to the U.S. District Court for the Northern District of Ohio that Demjanjuk's citizenship be revoked on the basis that he had allegedly concealed his involvement with Nazi death camps on his immigration application in 1951. The request followed a lengthy investigation by the INS after Demjanjuk was identified by five Holocaust survivors on a photo spread used in the investigation of Feodor Fedorenko, a Treblinka concentration camp guard.[citation needed]

Trial in Israel[edit]

Demjanjuk's supposed Nazi ID card from Trawniki, which trial experts said appeared to be authentic. [33]

Extradition[edit]

In October 1983, Israel issued an extradition request for Demjanjuk to stand trial on Israeli soil under the Nazis and Nazi Collaborators (Punishment) Law of 1950. Demjanjuk appealed his deportation with the case heard on 8 July 1985. During the appeal, the authenticity of the identity card was questioned when it was argued that the card's number, 1393, had been issued in June/July 1942 with the seal of SS Commissioner, Odilo Globočnik, who had in fact been dismissed from this post in March 1942 at which time his seal was destroyed. The three identity cards supplied by the KGB that the experts had used to compare their paper and ink with Demjanjuk's card to prove its authenticity were also disputed. Among other contentions such as graphic inconsistencies, the cards, all dated 1942, carried Waffen SS stamps despite their not taking control of the Trawniki camp until 1943. Two bore the signature of Corporal Teufel when he was at that time a sergeant, while the other card which had been issued earlier in the year when Teufel was still a corporal had his rank listed as sergeant. The cards were also signed by Captain Hermann Hoefle, who was actually a major. The court ruled on this claim:

the record before us lends no support to this very serious charge, and we reject it. Witnesses fully qualified to testify on the subject stated their opinions that the Trawniki documents were authentic. Even if this documentary evidence had been rejected, the eyewitness evidence alone was found sufficient. Since the district court did not rely on the "Trawniki card", its validity is not before the court.

The appeal was dismissed on 31 October 1985.[34] Demjanjuk was deported to Israel on 28 February 1986.[35]

Trial court, defense counsel, and prosecutors[edit]

Demjanjuk's trial took place in the Jerusalem District Court between 26 November 1986 and 18 April 1988, before a special tribunal comprising Israeli Supreme Court Judge Dov Levin and Jerusalem District Court Judges Zvi Tal and Dalia Dorner.[36]

Demjanjuk was at first represented by N.Y. attorney Mark J. O'Connor, but fired him in July 1987 just a week before he was scheduled to testify at his trial. In his place, Demjanjuk hired Israeli trial lawyer Yoram Sheftel whom O'Connor had hired as co-counsel. One of the reasons why Yoram Sheftel defended Demjanjuk was that he was convinced he was not at Treblinka. The defense originally used testimony from other Ukrainian auxiliary police (such as Ignat Danielchenko) to place Demjanjuk in different camps (specifically Sobibor) to prove that he was not at Treblinka; however, halfway through the trial, Sheftel subtly moved away from this method, fearing future prosecution on other charges.[37] Most Trawniki-trained camp guards with the exception of Eastern-European Volksdeutsche did not know German. The Volksdeutsche who relayed the orders for them were predominantly from ethnic German colonies in Ukraine and Russia, or were taught German. John Demjanjuk had no significant fluency in German.[citation needed]

The prosecution team consisted of Israeli State Attorney Yonah Blatman, Michael Shaked of the Jerusalem District Attorney's Office, Dennis Goldman and Eli Gabay of the International Section of the State Attorney's Office, and others.

Prosecution case[edit]

According to prosecutors, Demjanjuk had been recruited into the Soviet army in 1940, and had fought until he was captured by German troops in Eastern Crimea in May 1942. He was then brought to a German prisoner of war camp in Chełm in July 1942. Prosecutors claimed that Demjanjuk volunteered to collaborate with the Germans and was sent to the camp at Trawniki, where he was trained to guard prisoners and was given a firearm, a uniform, and an ID card with his photograph. The principal allegation was that three former prisoners identified Demjanjuk as "Иван Грозный" (Ivan Grozny, Russian for "Ivan the Terrible") of Treblinka, who operated the petrol engines sending gas to the death chamber.[a][38]

Prosecutors based part of these allegations on an ID card referred to as the "Trawniki card". This ID card was obtained from the USSR and provided to Israel by American industrialist Armand Hammer, a close associate of several Kremlin leaders, including Lenin and Stalin.[39] The defense claimed that the card was forged by Soviet authorities to discredit Demjanjuk.[40] The card had Demjanjuk's photograph, which he identified as his picture at the time. The prosecution called expert witnesses to testify on the authenticity of the card including its signatures by various Nazi officers, paper, and ink. The defense used some evidence supplied by the Soviets to support their case while calling other pieces of evidence supplied by the Soviets "forgeries".[41]

Other controversial evidence included Demjanjuk's tattoo. Demjanjuk admitted the scar under his armpit was a SS blood group tattoo, which he removed after the war, as did many soldiers to avoid summary execution by the Soviets. The blood group tattoo was applied by army medics and used by combat soldiers in Waffen-SS foreign volunteers and conscripts because they were likely to need blood or give transfusions. There is no evidence that POWs trained as police auxiliaries at Trawniki were required to receive such tattoos, although it was an option for those that volunteered.[42]

Concealed exculpatory evidence[edit]

During the trial, Demjanjuk was again identified on the photo spread by Otto Horn, a former German SS guard at Treblinka.[41] This testimony became controversial later because it was discovered by Yoram Sheftel that on 14 November 1979, Otto Horn was interviewed by the newly created US Department of Justice Office of Special Investigations (OSI). The OSI showed him the picture of Demjanjuk, but at that time Horn failed to identify Demjanjuk as Ivan the Terrible, or even as a guard from Treblinka, or as anyone he ever knew in the SS forces. The OSI report regarding Otto Horn's failure to identify John Demjanjuk as Ivan the Terrible would have been exculpatory, but was withheld by the OSI.[43]

Self-contradiction by star witness[edit]

One remarkable event involved a star witness for the prosecution, Eliyahu Rosenberg. Asked by the prosecution if he recognized Demjanjuk, Rosenberg asked that the defendant remove his glasses "so I can see his eyes." Rosenberg approached and peered closely at Demjanjuk's face. When Demjanjuk smiled and offered his hand, Rosenberg recoiled and shouted "Grozny!" meaning "Terrible" in Polish and Russian. "Ivan", Rosenberg said. "I say it unhesitatingly, without the slightest shadow of a doubt. It is Ivan from Treblinka, from the gas chambers, the man I am looking at now." "I saw his eyes, I saw those murderous eyes", Rosenberg told the court, glaring at Demjanjuk. Rosenberg then exclaimed directly to Demjanjuk: "How dare you put out your hand, murderer that you are!"[44]

It was later revealed with great embarrassment for the prosecution that Eliyahu Rosenberg had previously testified in a 1947 deposition that "Ivan the Terrible" had been killed in 1943 during a Treblinka prisoner uprising.[45]

Demjanjuk's testimony[edit]

Demjanjuk testified during the trial that he was imprisoned in a camp in Chełm until 1944, when he was transferred to another camp in Austria, where he remained until he joined an anti-Soviet Ukrainian army group. At that time, Ukrainian military groups like the Ukrainian National Army were forming in western Austria. Demjanjuk claimed that a few months later he joined an anti-Soviet Russian military organization, the Russian Liberation Army (Vlasov Army), funded by the Nazi German government until the surrender of Nazi Germany to the Allies in 1945.

Demjanjuk's memory regarding specifics of this period may have been impaired by severe trauma and malnutrition during his internment as a POW in Nazi concentration camps.[46] The reliability of witnesses' memory (including issues of confabulation, stress-impaired memory, memory errors) and the psychology of witnesses' testimony (such as unconscious transference and mistaken identity, positive response bias, weapon focus effect, confirmation bias) were also key issues of expert testimony.[47]

Verdict and sentence[edit]

On 18 April 1988, the Jerusalem District Court found Demjanjuk "unhesitatingly and with utter conviction" guilty of all charges and being Ivan the Terrible. One week later it sentenced him to death by hanging.[48] Demjanjuk was placed in solitary confinement during the appeals process.[49] While there, carpenters began building the gallows that would be used to hang him if his appeals were rejected, and Demjanjuk heard the construction from his cell.[50]

Israeli Supreme Court reversal[edit]

On 29 July 1993, a five-judge panel of the Israeli Supreme Court overturned the guilty verdict on appeal. Their ruling was based on the written statements of 37 former guards at Treblinka that identified Ivan the Terrible as "Ivan Marchenko".[49] Central to the new evidence was a photograph of Ivan the Terrible and a description that did not match the 1942 appearance of Demjanjuk. The accounts of 21 guards who were tried in the Soviet Union on war crimes gave details that differentiate Demjanjuk from Ivan the Terrible – in particular that 'Ivan the Terrible's surname was Marchenko, not Demjanjuk.[51] One described Ivan the Terrible as having brown hair, hazel eyes and a large scar down to his neck; Demjanjuk was blond with grayish-blue eyes and no such scar. US officials had originally been aware, without informing Demjanjuk's attorneys, of the testimony of two of these German guards.[52] However the Israeli justices noted that Demjanjuk had incorrectly listed his mother's maiden name as "Marchenko" in his 1951 application for US visa.[49] Demjanjuk said he just wrote a common Ukrainian surname after he forgot his mother's real name (Tabachyk).[52][53]

The former guards' statements were obtained after World War II by the Soviets, who prosecuted USSR citizens who had assisted the Nazis as auxiliary forces during the war. Most of the guards were executed after the war by the Soviets,[54] and their written statements were not obtained by Israeli authorities until 1991, when the Soviet Union collapsed.[52] Russian historian Sergei Kudryashov pointed out that if the defense's claims of a KGB plot to defame Demjanjuk had been the case, then the Soviet files that established that Demjanjuk was not "Ivan the Terrible" would have never been made available to the defense.[55]

After the collapse of the USSR, the governments of Ukraine and Russia were for a time more open than the previous Soviet regimes. The Soviet KGB was known to use disinformation, in particular through the use of forgeries, to discredit, denigrate, and confuse its enemies, including Ukrainian communities in the West that supported Ukrainian independence.[56]

The Israeli Supreme Court's 405 page ruling included the following:

The main issue of the indictment sheet filed against the appellant was his identification as Ivan the Terrible, an operator of the gas chambers in the extermination camp at Treblinka ... By virtue of this gnawing [new evidence indicating mistaken identity] ... we restrained ourselves from convicting the appellant of the horrors of Treblinka. Ivan Demjanjuk has been acquitted by us, because of doubt, of the terrible charges attributed to Ivan the Terrible of Treblinka. This was the proper course for judges who cannot examine the heart and mind, but have only what their eyes see and read ... . The facts proved the appellant's participation in the extermination process. The matter is closed – but not complete, the complete truth is not the prerogative of the human judge.[49]

The court judgment addressed evidence against Demjanjuk that was not included in his indictment. The judges agreed that Demjanjuk most likely served as a Nazi Wachmann (guard) in the Trawniki unit[49] and had been posted at Sobibor extermination camp and two other camps. Evidence to assist this claim included an identification card from Trawniki bearing Demjanjuk's picture and personal information[49] – allegedly found in the Soviet archives – in addition to German documents that mentioned "Wachmann" Demjanjuk and mentioned his date and place of birth. The 1949 statement of another Wachmann, Danilchenko, who had identified a Demjanjuk in passing as someone who allegedly served with him at Sobibor in 1944 (a year after the camp had been razed) and noted he had been born the same year as himself (1923). In 1979, Danilchenko made another statement adding that Demjanjuk was allegedly three years older than himself and had been in Sobibor in 1943. None of Danilchenko's allegations were ever subjected to cross-examination.[citation needed]

The alleged Trawniki certificate also implied that Demjanjuk had served at Sobibor, as did the German orders of March 1943 posting his Trawniki unit to the area.[49]

Post-acquittal[edit]

After Demjanjuk's acquittal, the Israeli Attorney-General decided to release him rather than to pursue charges of committing crimes at Sobibor. Ten petitions against the decision were made to the Supreme Court. On 18 August 1993, the court rejected the petitions on the grounds that

  1. the principle of double jeopardy would be infringed,
  2. that new charges would be unreasonable given the seriousness of those of which he had been acquitted,
  3. that conviction on the new charges would be unlikely, and
  4. that Demjanjuk was extradited from the United States specifically to stand trial for offenses attributed to Ivan the Terrible of Treblinka, and not for other alternative charges.[57]

During the trial, the prosecution argued that Demjanjuk should be tried for alleged crimes at Sobibor; however, Justice Aharon Barak was not convinced, stating "We know nothing about him at Sobibor".[58]

Simon Wiesenthal, an iconic figure in Nazi hunting, first believed Demjanjuk was guilty, but after Demjanjuk's acquittal by the Israeli Supreme Court said he too would have cleared him given the new evidence.[59]

Yoram Sheftel's 1994 book The Demjanjuk Affair: The rise and fall of a show-trial became an immediate best-seller in Israel.[60] In reviewing many issues pertaining to the law, Sheftel revealed serious errors, deliberate fabrications, and "fraud on the court" perpetrated by the US Department of Justice Office of Special Investigations (OSI) lawyers in their prosecution of the Demjanjuk case.

Demjanjuk was released to return to the United States. In 1993, the Sixth Circuit Court of Appeals ruled that Demjanjuk was a victim of fraud on the court, as United States federal government trial lawyers with the Office of Special Investigations had recklessly failed to disclose evidence, and the extradition order previously granted was rescinded.[61] In a report submitted to the Sixth Circuit prior to the Israeli acquittal, federal judge Thomas A. Wiseman, Jr. concluded that American federal officials had erred in asserting that Demjanjuk was Ivan the Terrible, but that evidence instead pointed to Demjanjuk being a lesser SS agent.[52] After the Court of Appeals remanded the matter to Judge Wiseman, Judge Wiseman dismissed the denaturalization petition proceedings in 1998, effectively restoring Demjanjuk's citizenship.[62] Transcripts of Demjanjuk's 1988 trial, and the character of Demjanjuk himself, appear in Philip Roth's 1993 novel Operation Shylock.

Second round of charges, deportation, and prosecution[edit]

Sobibor "Road to Heaven" in 2007

On 20 February 1998, Judge Paul Matia of the U.S. District Court for the Northern District of Ohio ruled that Demjanjuk's citizenship could be restored.[63] On 19 May 1999, the Justice Department filed a new civil complaint against Demjanjuk.[63] No mention was made in the new complaint of the previous allegations that Demjanjuk was Ivan the Terrible. Instead, the complaint alleged that Demjanjuk served as a guard at the Sobibór and Majdanek camps in Poland under German occupation and at the Flossenburg camp in Germany. It additionally accused Demjanjuk of being a member of an SS-run unit that took part in capturing nearly two million Jews in the General Government of Poland. He was put on trial again in 2001.

Second loss of U.S. citizenship[edit]

In February 2002, Judge Matia revoked Demjanjuk's US citizenship.[29] Matia ruled that Demjanjuk had not produced any credible evidence of his whereabouts during the war and that the Justice Department had proved its case against him. Demjanjuk appealed to the U.S. Court of Appeals for the Sixth Circuit, which on 30 April 2004 ruled that Demjanjuk could be again stripped of his US citizenship because the Justice Department had presented "clear, unequivocal and convincing evidence" of Demjanjuk's service in Nazi death camps.[64] The United States Supreme Court declined to hear his appeal in November 2004.[63]

New court order[edit]

On 28 December 2005, an immigration judge ordered Demjanjuk deported to Germany, Poland or Ukraine. In an attempt to avoid deportation, Demjanjuk sought protection under the United Nations Convention against Torture, claiming that he would be prosecuted and tortured if he were deported to Ukraine. Chief US Immigration Judge Michael Creppy ruled there was no evidence to substantiate Demjanjuk's claim that he would be mistreated if he were sent to Ukraine.[65]

On 22 December 2006, the Board of Immigration Appeals upheld the deportation order.[66] On 30 January 2008, the Court of Appeals for the Sixth Circuit denied Demjanjuk's request for review.[b] On 19 May 2008, the US Supreme Court denied Demjanjuk's petition for certiorari, declining to hear his case against the deportation order.[67][68] The Supreme Court's denial of review meant that the order of removal was final; no other appeal was possible.

Deportation proceedings and actions[edit]

One month after the US Supreme Court's refusal to hear Demjanjuk's case, on 19 June 2008, Germany announced it would seek the extradition of Demjanjuk to Germany. The file on Demjanjuk was compiled by the special German office investigating Nazi crimes. Kurt Schrimm, who heads the office, said that investigators "have managed to obtain hundreds of documents and have also found a number of witnesses who spoke out against Demjanjuk". "For the first time we have even found lists of names of the people who Demjanjuk personally led into the gas chambers. We have no doubt that he is responsible for the death of over 29,000 Jews" at the Nazis' Sobibor death camp, he said. Kurt Schrimm said that Demjanjuk could be brought to Germany by the end of 2008; however, this did not occur[69][70]

On 10 November 2008, German federal prosecutor Kurt Schrimm directed prosecutors to file in Munich for extradition, since Demjanjuk once lived there. On 9 December 2008, a German federal court declared that Demjanjuk could be tried for his alleged role in the Holocaust.[71] Some three months later, on 11 March 2009, Demjanjuk was charged with more than 29,000 counts of accessory to murder of Jewish prisoners at the Sobibor extermination camp.[72] The German foreign ministry announced on 2 April 2009 that Demjanjuk would be transferred to Germany the following week,[73] and would face trial beginning 30 November 2009.[74]

Demjanjuk sued Germany on 30 April 2009, to try to block the German government's agreement to accept Demjanjuk from the US.[75] His filing with the German Administrative Court in Berlin claimed that the procedure by which he was to be moved from the US to Germany was illegal, and asked the Court to suspend the declaration by the German government that allowed Demjanjuk to enter the country pursuant to US deportation, until a court determination is made.[75] The German Administrative Court rejected Demjanjuk's claim on 6 May; Demjanjuk's German attorney stated that he would appeal the decision.[76]

Motion to reopen the case[edit]

On that same day – 2 April 2009 – Demjanjuk filed a motion in an immigration trial court in Virginia. The motion sought to reopen the matter of the removal order against him; that order of removal had been originally issued by an immigration court in 2005, had been upheld by the BIA on administrative appeal in late 2006,[66] and was further upheld by the Sixth Circuit Court of Appeals;[b] after these two appeals, the US Supreme Court had, as noted above, denied any review.[67] In connection with the motion to reopen, Demjanjuk also asked the immigration court to stay the removal order, pending the decision on whether or not to reopen the matter.

On 3 April 2009, US Immigration Judge Wayne Iskra temporarily stayed Demjanjuk's deportation,[77] but reversed himself three days later, on 6 April.[78] As the Government noted, a motion to reopen, such as Demjanjuk's, could only properly be filed with the Board of Immigration Appeals (BIA) in Washington, D.C., and not an immigration trial court. The issuance of the stay by the immigration trial court was therefore improper, as that court had no jurisdiction over the matter. Accordingly, Demjanjuk re-filed his motion to reopen, and for an attendant stay, with the BIA.[79][80]

Demjanjuk's motion to reopen argued that, under the circumstances, his deportation to Germany would constitute torture. His attorney stated that his health had deteriorated seriously in the last four years. Demjanjuk argued that his request was supported by the past actions of the very same Office of Special Investigations where in the Tannenbaum case the DOJ allowed another sick old man to remain in the United States who had admitted to mistreatment of prisoners in a Nazi camp.[81] On 10 April, the BIA found there was "little likelihood of success that [Demjanjuk's] pending motion to re-open the case will be granted" and accordingly denied his motion for a stay pending the disposition of his motion to reopen. This removed any obstacles to federal agents seizing him for deportation to Germany.[80]

The Government has responded to Demjanjuk's torture claim as a basis for reopening the deportation order – a case that was decided against Demjanjuk in 2005 and that has been thrice affirmed against him on appeal – by stating that his claim is "patently frivolous". Rabbi Abraham Cooper, Associate Dean of the Simon Wiesenthal Center and its Museum of Tolerance, wrote:[82]

This attempt by a former guard at a death camp to cast himself as the victim is ... nothing less than a grotesque debasement of the word "torture", a characterization that makes a mockery of the terrible suffering inflicted on genuine victims of torture at places like the Sobibor extermination center. Ironically, [the p]etitioner's argument is advanced by one who has been confirmed by US to have contributed to the mass-asphyxiation of thousands of civilians at a human extermination center on behalf of a regime responsible for some of the largest-scale tortures and murders in history.

— Rabbi Abraham Cooper[82]

Sixth Circuit's stay[edit]

On 14 April 2009, immigration agents removed Demjanjuk from his home in preparation for deportation.[83] The same day, Demjanjuk's son filed a motion in the Court of Appeals for the Sixth Circuit asking that the deportation be stayed,[83] which was subsequently granted.[84] The Government argued that the Court of Appeals has no jurisdiction to review the decision of the Board of Immigration Appeals, which denied the stay.[85] Demjanjuk later won a last-minute stay of deportation, shortly after US immigration agents carried him from his home in a wheelchair to face trial in Germany. The BIA denied Demjanjuk's motion to reopen his deportation case.

The Sixth Circuit, whose stay of the deportation order remained in effect, asked lawyers for both parties to provide it with more information from the government, physicians and Demjanjuk himself. On 20 April, the government filed a motion with the Sixth Circuit asking for the stay against deportation to be lifted, arguing that Demjanjuk had sought the stay in order to provide an opportunity for the BIA to rule upon his motion to reopen the deportation order. Since the BIA denied the motion, the government argued, the basis for the Sixth Circuit's stay was no longer valid, and the stay should accordingly be dismissed.[86] The Jerusalem Post also reported that the Simon Wiesenthal Center had declared Demjanjuk to be the "most wanted Nazi war criminal" on its list, displacing SS doctor Aribert Heim. According to a spokesman for the Center, the revised ranking was intended to reflect the importance attributed to the US efforts to deport Demjanjuk to Germany to stand trial.[86]

Sixth Circuit's stay lifted[edit]

On 1 May 2009, the Sixth Circuit lifted the stay that it had imposed against Demjanjuk's deportation order. The Court stated in its opinion that:

Based on the medical information before the court and the government's representations about the conditions under which it will transport the petitioner, which include an aircraft equipped as a medical air ambulance and attendance by medical personnel, the court cannot find that the petitioner's removal to Germany is likely to cause irreparable harm sufficient to warrant a stay of removal.[87]

The Court also ruled that it was unlikely that Demjanjuk could demonstrate that he would be "tortured" in Germany and that this claim did not sufficiently support his request for a stay.[75][88][89] Although the stay was lifted, and the government freed of legal constraints that prevented it from deporting Demjanjuk, his appeal for the substantive review of the BIA decision on the merits (wherein the BIA effectively upheld the deportation order itself, by refusing to reopen the case on the ground that "torture" in Germany was more likely than not) was still pending before the Court of Appeals.[c] However, the Court stated in its opinion denying the stay (in the process of addressing the question of the extent to which Demjanjuk was likely to succeed on the merits of his motion to reopen) that:

... the petitioner has not shown a strong or substantial likelihood of success on the merits of his challenge to ... the [BIA's] denial of his motion to reopen. At most, he has offered speculation that German authorities may not adequately attend to his medical needs while he is in ... custody.[89]

Petition to Supreme Court[edit]

On Tuesday 5 May 2009, Demjanjuk announced through counsel that he was filing a petition with the US Supreme Court, seeking review of the adverse decision of the Sixth Circuit Court of Appeals that had denied his stay. His counsel expected the filing to be made on Wednesday 6 May. The filing characterized the unanimous decision of the three-judge Sixth Circuit panel as "incomprehensible". On Thursday 7 May 2009, the United States Supreme Court, via Justice John Paul Stevens, declined to consider Demjanjuk's case for review, thereby denying Demjanjuk any further stay of deportation. Justice Stevens issued his decision without comment.[90][91] Demjanjuk's counsel thereafter stated that his client would not seek to have the entire Court consider Justice Stevens' decision and that accordingly all legal avenues in the United States to halt the deportation had been exhausted.

"Torture" as basis for reopening the case[edit]

Demjanjuk's motion to reopen was based on the claim that he would be tortured as a result of being deported. Demjanjuk claimed that, because he was old and sick, transferring him to Germany would constitute "torture" within the meaning of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention), and that this circumstance was sufficient to reopen consideration of his case.[d] His attorney, John Broadley, argued before the BIA that deporting Demjanjuk would constitute torture because of his health problems, including pre-leukemia, kidney problems, spinal problems and "a couple of types of gout".[83][84] To summarize the foregoing, his essential contention in his legal pleadings and public statements was, that it would be very hard on him, and perhaps life-threatening, to be taken away from his home in his present condition.[e] He claimed that this circumstance would constitute "torture".

While Demjanjuk was removed from his house in a wheelchair and appeared to be "slack-jawed and unmoving", on 23 April 2009, federal prosecutors submitted surveillance video evidence taken after the removal of Demjanjuk; the footage showed Demjanjuk walking with no assistance to a car in a parking lot while "alert and engaged in conversation".[92] They also provided the Court of Appeals with a medical report that supported their claim that Demjanjuk is medically fit to be moved to Germany; a flight surgeon who examined Demjanjuk while in government custody for alleged back pain later noticed that Demjanjuk "moved his back with apparent ease".[92] On 23 April 2009, a group of students from the Hebrew Academy of the Five Towns and Rockaway petitioned the Sixth Circuit Court of Appeals to uphold the deportation order.[93]

Deportation to Germany[edit]

During the deportation proceedings, the government lawyers stated that even if the court lifts the stay, they would defer deportation until at least 1 May, to allow Demjanjuk time to file an appeal to the US Supreme Court.[92][94]

Demjanjuk was deported to Germany, leaving Cleveland, Ohio, on 11 May 2009, to arrive in Munich on 12 May. Upon his arrival, he was arrested and sent to Munich's Stadelheim prison.[95]

Trial in Germany[edit]

On 3 July 2009, prosecutors deemed Demjanjuk fit to stand trial. On 13 July 2009, prosecutors charged him with 27,900 counts of accessory to murder.[96] Doctors restricted the time Demjanjuk could be tried in court each day to two sessions of 90 minutes each, said Munich State Prosecutor Anton Winkler.[97]

On 30 November 2009, Demjanjuk's trial, expected to last for several months, began in Munich.[98] Demjanjuk arrived in the courtroom in a wheelchair pushed by a German police officer.[99]

Some 35 plaintiffs were admitted to file in the case, including four survivors of the Sobibor concentration camp and 26 relatives of victims. The Central Council of Jews in Germany issued a statement in regard to the extradition and the trial, stressing their symbolic significance. "All NS (National Socialist) criminals still living shall know that there won't be mercy for them, regardless of their age. They have to be held accountable for their inhuman deeds."[100]

On 14 April 2010, Anton Dallmeyer, an expert witness, testified that the typeset and handwriting on an ID card being used as key evidence matched four other ID cards believed to have been issued at the SS training camp at Trawniki. Demjanjuk's lawyer argued that all of the ID cards could be forgeries, and that there was no point comparing them.[101]

On 24 February 2010, a witness for the prosecution, Alex Nagorny, who agreed to serve the Nazi Germans after his capture, raised doubts about the case against Demjanjuk, telling the court the man on trial in Munich state court didn't look like his fellow guard at the Flossenbürg camp. (There were three different former guards named Nagorny and it was not immediately clear whether the man who testified in the Demjanjuk trial was the same who allegedly served in Treblinka.)[102] Nagorny told the Munich state court that he knew Demjanjuk from the Flossenbürg camp. "We were brought there and Ivan was already there", the 92 year-old testified, referring to Demjanjuk by his birth name. "He was a guard there. He did the same thing I did. I did not know him before Flossenbürg." Nagorny has previously told investigators he arrived at Flossenbürg with Demjanjuk. Nagorny testified he lived with Demjanjuk in a barracks room in Flossenbürg and then shared an apartment with him in Landshut, Germany, after the war. When asked to identify Demjanjuk in the courtroom, Nagorny could not. Nagorny walked over to the bed where Demjanjuk lay and looked at him closely. When Demjanjuk removed the sunglasses that he was wearing, Nagorny said quickly: "That's definitely not him – no resemblance."[103] Nagorny also cast doubt on the provenance of the Trawniki card testifying that in the final days of the war the Trawniki guards destroyed their cards before being taken prisoner by the Americans.[103]

On 15 January 2011, Spain requested a European arrest warrant be issued for alleged Nazi war crimes while Demjanjuk was still on trial in Germany; specifically, it alleged that Demjanjuk was involved in the deaths of 60 Spaniards imprisoned at Flossenbürg while serving as a guard there.[104] Germany denied Spain's extradition request on 31 May 2011, citing jurisdictional concerns and insufficient evidence provided by Spanish authorities of Demjanjuk's involvement in the crimes alleged by them.[105]

On 12 May 2011, aged 91, Demjanjuk was convicted as an accessory to the murder of 27,900 Jews at Sobibor killing centre and sentenced to five years in prison.[106][107][108][109] Presiding Judge Ralph Alt ordered Demjanjuk released from custody pending his appeal. The judge suspended the remainder of the sentence, noting Demjanjuk had already served 2 years during trial, was 91 years old, and had served 8 years in Israel on related charges that were later overturned. Alt said there were no grounds to hold Demjanjuk. "It's the law, and so it's justice," he added. "I say he's guilty, but it's not a final verdict." Demjanjuk's interim conviction had the potential to set a new legal precedent in Germany, opening the possibility of hundreds of new investigations. This was the first time someone has been convicted solely on the basis of serving as a camp guard, with no evidence of being involved in the death of any specific inmate.[110][111]

After Demjanjuk's death, the Munich court issued a statement that Demjanjuk is "still technically presumed innocent", because he died before his final appeal could be heard, and "a person is presumed innocent until proven guilty". According to German law, no conviction stands until all appeal rights have been exhausted.[15]

Christiaan F. Rüter, Professor of Law and expert on NS trials in Germany, who researched the subject at the University of Amsterdam for 40 years, expressed reservations against the commencement of proceedings stating that to him "it is a complete mystery, how anyone who knows the German jurisdiction up to now, would be able to assume that Demjanjuk could be sentenced based on the given evidence."[32]

Death and posthumous efforts to restore US citizenship[edit]

John Demjanjuk died at a home for the elderly in Bad Feilnbach, Germany on 17 March 2012, aged 91.[112] As a consequence of his appeal not having been heard, Demjanjuk's conviction of May 2011 by a lower court was invalidated; and he died without a criminal record.[13] Demjanjuk's lawyer, Dr. Ulrich Busch, had demanded that the Munich court publish a clarifying statement that Demjanjuk was presumed innocent and without a criminal record "given the false statements in international media reports that Demjanjuk died a convicted war criminal".[13]

Following his death, his relatives requested that he be buried in the United States, where he once lived. Jewish organizations have opposed this, claiming that his burial site would become a centre for neo-Nazi activity.[113] On 31 March 2012, it was reported that John Demjanjuk was buried at an undisclosed US location, now known to be the Ukrainian section of the Brooklyn Heights cemetery in Parma, Ohio.[114]

On 12 April 2012, Demjanjuk's attorneys filed a suit to posthumously restore his US citizenship. The suite alleged that US government withheld a key FBI document that could have helped him in his bid to keep his citizenship. In 2011 the Associated Press had uncovered a secret 1985 FBI report which indicated that a Nazi ID card showing that Demjanjuk had served as a death camp guard could have been a Soviet-made fake. The judge in the case ruled that the FBI document was based on speculation and unfounded beliefs. The subsequent motion filed in the 6th Circuit Court of Appeals in Cincinnati alleged an ongoing pattern of withholding other exculpatory materials. Demjanjuk's lawyers claimed that a matter does not rest on a singular document, but that "hundreds of files" recently declassified by a National Archives and Records Administration in Maryland could have aided Demjanjuk's efforts to recover US citizenship.[115]

On 28 June 2012, the 6th US Circuit Court of Appeals in Cincinnati ruled that Demjanjuk could not regain his citizenship posthumously. The three-judge panel said in its ruling that his death made the case moot, and that the appeal was without merit, given the court's 2004 decision that Demjanjuk's denaturalization should not be revoked.[116][117] On 11 September 2012, the court denied Demjanjuk's request to have the appeal reheard en banc by the full court.[118]

In early June 2012, Ulrich Busch, Demjanjuk's attorney, filed a complaint with Bavarian prosecutors claiming that the pain medication Novalgin (known in the US as metamizole or dipyrone) that had been administered to Demjanjuk helped lead to his death. Busch asked prosecutors to open an investigation of five doctors and a nurse on suspicion of manslaughter and causing bodily harm.[119] The investigation was closed in November 2012 after no evidence emerged to support the allegations.[120]

Subsequent prosecutions of Nazi extermination camp guards[edit]

On 6 April 2013, the Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes announced it would charge 50 former guards at Auschwitz concentration camp with accessory to murder.[121] The investigation lacked direct witnesses, but the agency hoped that available written records would suffice in court, as was the case with Demjanjuk.[121] In April 2015, the trial of Oskar Gröning began.

See also[edit]

Notes[edit]

  1. ^ More than 30 testimonies from Jewish ex-prisoners of the Treblinka Camp taken under oath in 1945 named Jan Rogozha as the Ukrainian guard who operated the engines. In 1954, four Ukrainian guards named the guard as Ivan Marchenko in their war crimes trial. In 1956 all four retracted their testimony claiming it was given under duress.
  2. ^ a b Demjanjuk did not, on his appeal, contest the Board's decision on its merits. His sole ground for appeal was that the Immigration Judge who had heard his case – Judge Creppy – was not an "immigration judge" within the meaning of the law and was therefore without jurisdiction to decide the case, thereby nullifying the proceeding. The Sixth Circuit found his argument to be without merit. Demjanjuk v. Mukasey, No. 07-3022 (6th Circuit Court of Appeals 30 January 2008).
  3. ^ Case No. 09-3469. Companion case 09-3416, wherein Demjanjuk sought a stay prior to the BIA's denial of his motion to reopen the case on the merits, was dismissed as moot.
  4. ^ This sentence was a summary of the legal arguments on "torture" presented by Demjanjuk in his legal pleadings. See, e.g.., his "Motion for Stay" (PDF).[permanent dead link] filed with the Sixth Circuit.
  5. ^ These public statements may be found in the news article citations herein.

Citations[edit]

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  2. ^ "John Demjanjuk's lawyers seek his return to the US". Cleveland.com. AP. Retrieved 21 January 2012.
  3. ^ Sturcke, James (12 May 2009). "Timeline: John Demjanjuk". The Guardian. UK. Retrieved 21 January 2012.
  4. ^ Fyler, Boaz (17 March 2012). "Israeli judge: Demjanjuk was 'Ivan the Terrible'". Ynetnews Magazine. Retrieved 26 March 2014.
  5. ^ Hedges, Chris (12 August 1993). "Israel recommends that Demjanjuk be released". The New York Times.
  6. ^ "John Demjanjuk war crimes trial begins in Munich". BBC News. UK. 30 November 2009. Retrieved 21 January 2012.
  7. ^ a b Ewing, Jack; Cowell, Alan (13 May 2011). "Demjanjuk taken to nursing home". The New York Times.
  8. ^ Fischer, Sebastian; Neumann, Conny; Meyer, Cordula (9 December 2009). "Demjanjuk Lands in Munich". Der Spiegel. Munich and Cleveland. Retrieved 28 March 2017.
  9. ^ "Demjanjuk en route to Germany". United Press International. 11 May 2009.
  10. ^ Kulish, Nicholas (12 May 2009). "Accused Nazi arrives in Munich". The New York Times.
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  16. ^ formerly Kiev Governorate, presently Koziatyn district, Vinnytsia Oblast
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Bibliography[edit]

External links[edit]