John Demjanjuk and the Failure of Justice

In late August, the US Court of Appeals in Cincinnati gave a fresh twist to the tangled case of John Demjanjuk, the Ukrainian-born auto mechanic who was denaturalized in 1981, and sentenced to death in Israel in 1988 for war crimes. The verdict in Jerusalem, that he was “Ivan the Terrible”—the gas-chamber operator at the Treblinka death camp in Poland during the Second World War—is now under appeal. But there has been growing concern about the evidence leading to Demjanjuk’s extradition to Israel in 1986, and the US appellate court, after sifting through 750 pages of documents received from the Department of Justice, has ordered the four US prosecutors in his 1981 denaturalization case to be questioned under oath. The hearings before Federal Judge Thomas Wiseman, appointed “special master,” will be held in Nashville, Tennessee, on October 15–16, and other officials of the Office for Special Investigations of the Justice Department (OSI) are expected to be called in November.

According to Judge Gilbert Merritt, chief of the Appeals Court panel, the US Department of Justice, prior to the extradition proceedings, had failed to disclose documents suggesting that another Ukrainian, Ivan Marchenko, had, in fact, been “Ivan the Terrible.” The “bedrock question” for the court now, he said, was to decide whether the failure of the prosecutors to disclose this potentially exculpatory information constituted prosecutorial misconduct and fraud, misleading the court into ordering Demjanjuk’s extradition.

Since the Department of Justice has already admitted having withheld evidence casting doubt on Demjanjuk’s identity as Ivan the Terrible, it is possible that his extradition order may be reversed. So the Israeli judges who have been pondering Demjanjuk’s appeal since June 10 may now find that Israeli law requires them to overturn Demjanjuk’s trial, conviction, and sentence.

Given the concern expressed by the Appeals Court in the US, it will be tempting to blame the collapse of the case entirely on the conduct of the American prosecutors, but to do so would obscure the complexities of a case that has been subject from the start to cultural misunderstandings, political pressures, and extreme emotional reactions in three countries.

The case being decided upon this year, when the Soviet Union no longer exists, originated not only in the ashes of Hitler’s Germany, but in the cold war, and in a way John Demjanjuk—though by no means innocent—became part of that struggle. During the years in which this case was under investigation, the Soviets and the Americans deeply distrusted each other. While the Soviet authorities supplied bits of evidence, they were also using the case in their political game against the US, and they deliberately withheld information: most of the more than twenty-five requests the Americans made for information about Demjanjuk remained unanswered. The Americans, for their part, dealt both selectively and carelessly with the sparse evidence the Soviets did provide, allowing their own passionate belief in Demjanjuk’s guilt to rule their use of evidence. The Israelis, on their side, kept in ignorance by the American prosecutors…

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