John Demjanjuk And The Amazing Hypocrisy Of German Justice

Last week, the Munich district attorney’s office announced that it was charging the 88-year-old John Demjanjuk with some 29, 000 counts of accessory to murder for his alleged activity as a guard at the Sobibor concentration camp during the Second World War. Germany is seeking the long-time Ohio resident’s extradition from the United States and all the signs suggest that the Obama administration is prepared to facilitate the request. The spectacular development, coming over 60 years after the end of the Second World War, will lead many Americans to believe that Germany is exceptionally thorough and vigilant about prosecuting Nazi war crimes. And this is indeed presumably the purpose of the Demjanjuk indictment – for the reality could hardly be more different.

German authorities are apparently eager to have the honor of trying the Ukrainian-born Demjanjuk, who is alleged to have been dispatched to Sobibor as part of a legion of foreign SS “volunteers.” Like the other “volunteers,” Demjanjuk had been a soldier in the Red Army and he was recruited while being held prisoner in a German P.O.W. camps. German authorities have shown no such eagerness, however, about prosecuting Germans whose responsibility for Nazi crimes was obviously far greater and more primordial. Moreover, Germany regularly prevents its homegrown and genuine Nazis from facing war crimes charges abroad, since it is the country’s long established policy to refuse to extradite them.

As commonly presented to the American public, the Demjanjuk saga activates the time-worn cliché of the Nazi war criminal slinking off to far-flung continents after the war to avoid prosecution. This popular meme already received a significant boost recently from the New York Times “scoop” concerning Aribert Heim: the supposedly “most wanted” Nazi war criminal who, according to the Times and Germany’s ZDF television, lived in Egypt under the assumed name of Tarek Farid Hussein until his death in 1992. Some Nazi war criminals, undoubtedly expecting to be made to pay for their crimes by the Allied authorities, did indeed flee Europe. But the fact of the matter is that innumerable Nazi criminals went nowhere or fled precisely to the “heart” of the crumbling Reich, i.e. Germany itself, and they were able to go on with their lives there unbothered. There is an ample literature on the subject in German, including such standard works as Jörg Friedrich’s “The Cold Amnesty” [Die kalte Amnestie] and Ernst Klee’s “What They Did and What They Became” [Was sie taten, Was sie wurden].

It should be recalled in this connection that Demjanjuk already faced trial in Israel on charges of complicity in Nazi war crimes. Demjanjuk was born “Ivan” Demjanjuk and according to the Israeli charges, he was supposed to be none other than “Ivan the Terrible”: a notoriously sadistic guard at the Treblinka death camp. In 1993, however, the Israeli Supreme Court overturned Demjanjuk’s conviction, after evidence emerged that he was not in fact that “Ivan.” Now, he is supposed to be tried in Germany on the basis of evidence that he simply was a guard at another camp: an allegation that the Israelis also considered, but did not regard as sufficient to continue holding him. The Munich prosecutor’s action suggests that Germany is somehow committed to bringing to justice every guard who ever served at any Nazi concentration camp. But not only is such an idea prima facie implausible, it is downright ludicrous when one knows the actual practice of the German courts.

In fact, as German legal historian Ingo Müller has shown, lower level cogs in the Nazi machinery of death were, in effect, made the beneficiaries of a general amnesty in then West Germany in 1968, when an inconspicuous paragraph in an inconspicuous law lowered the maximum sentence for accessory to murder to 15 years imprisonment. In 1960, however, the Bundestag had already permitted the statute of limitations to expire on crimes with a maximum sentence of 15 years. As consequence, virtually all the crimes attributed to concentration camp personnel acting under orders were no longer subject to prosecution. (The details are discussed in Müller’s groundbreaking study Furchtbare Juristen, which is available in English as “Hitler’s Justice”.) Just why Demjanjuk should not benefit from the same dispositions as his erstwhile German comrades among the camp personnel is not clear.

Moreover, even when concentration camp personnel were brought to trial in West Germany before this “backdoor amnesty” came into effect, the courts displayed incredible leniency toward them. Thus, for example, in 1965, the Munich District Court tried nine members of the SS detachment at the Belzec concentration camp on charges of having been accessories in the murder of some 600,000 Jews. Only one of the nine men, Josef Oberhauser, was found guilty. For his complicity in the murder of some 300,000 persons, Oberhauser was sentenced to all of four years and six months in prison. As Müller has observed, this works out to a total of 7.8 minutes for each of his victims. As so happens, the Munich District Court [Landgericht München] is the very court that is now seeking to charge Demjanjuk. If it is to apply the same standard to Demjanjuk as it once applied to Josef Oberhauser, Demjanjuk can expect a sentence of about five months.

It should be noted, moreover, that Josef Oberhauser and all eight of his acquitted codefendants were SS officers. This means that they possessed command authority that the simple foreign “volunteer” Ivan Demjanjuk did not. Indeed, if Demjanjuk did in fact serve at Sobibor, as charged, his commanding officer would have been none other than Oberhauser. According to the 1965 findings of the Munich District Court, the latter was responsible for all the Ukrainian “volunteers” at the Treblinka, Sobibor and Belzec camps.

But perhaps the leniency displayed by the German courts to concentration camp personnel is only just. Why, after all, should they be held accountable when so many higher level Nazi authorities escaped punishment? As Müller has shown in part III of his Furchtbare Juristen, the post-war West German courts employed such a narrow conception of criminal responsibility that not only concentration camp guards but in fact the virtual entirety of the personnel of the Nazi state were downgraded to mere “accessories.” The actual perpetrators of Nazi crimes were again and again held to be only Hitler, Himmler, Heydrich, and so on.

Many high Nazi officials, including such as were directly implicated in the Holocaust, never faced trial at all. Consider, for instance, the case of one Hans Gmelin. An SA officer and jurist, Gmelin served as attaché to the German embassy in the Nazi satellite state of Slovakia. As documentary evidence shows, in this capacity he helped to organize and direct the deportation of Slovakia’s Jews. Their destination: the Nazi death camps at Auschwitz, Treblinka, and Sobibor. As Hans-Joachim Lang has noted in an exposé of Gmelin’s Nazi career (Schwäbisches Tagblatt, 28 April 2005):

Whether Eichmann was announcing his arrival or railway officials came by to discuss “questions relating to the shipment of Jews” or the Reich Central Security Office was welcoming the Slovak government’s “making available of railway equipment,” initials on the documents always confirmed who had been apprised: for example, “Gm” for Gmelin.

It was also Gmelin who informed the Slovak government that it would have to pay the Reich authorities some 500 Reichsmarks for each deported Jew. The accommodation of the Jews in the camps entailed costs, Gmelin explained, these costs “could not be covered by the initially limited productivity of the Jews, since their reeducation would only have effect after some time and only a part of the Jews that have been shipped or that are still to be shipped are capable of working.”

Left: Ivan “John” Demjanjuk, circa 1943, in an alleged “SS” identity card photo
Right: SA Standartenführer (Squadron Leader) Hans Gmelin, circa 1943, in Slovakia

Was Gmelin prosecuted for his role? Far from it. Barely six years after being released from an Allied P.O.W. camp, he was elected mayor of Tübingen: an office he would continue to hold for two decades. In 1943, while he was still stationed in Bratislava – or Preßburg, as the Germans called it – Gmelin’s wife Helga would give birth to a baby girl. The Gmelins named their daughter “Herta.” She would grow up to be Herta Däubler-Gmelin: the German Minister of Justice who in 2002 famously compared George W. Bush to Adolf Hitler. (For more on Hans Gmelin and his daughter, see my article “Do You Remember Herta Däubler-Gmelin?”)

The fact that Demjanjuk will face trial in Germany as the result of an extradition process adds a touch of particularly bitter irony to the case. As noted above, it is long established German policy to refuse to extradite Nazi war criminals to face justice in foreign jurisdictions: which is to say, typically the very jurisdictions in which they committed their crimes. Thus, in June 2005, an Italian court found ten former members of the Waffen SS “Reichsführer” division guilty of mass murder for their roles in the infamous massacre of some 560 civilians in the town of Sant’Anna di Stazzema. (The massacre is the ostensible subject of Spike Lee’s recent film Miracle at Santa Anna.) Some 80% of the victims were women, children, and elderly persons. As a result of Germany’s non-extradition policy, none of the defendants appeared in court and none has had to serve time.

The Nazi murderers of Sant’Anna, like so many of their fellows, are living out their lives in comfortable retirement…in Germany.