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04Jun09

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Demjanjuk's detention leads to a reassessment of impunity in Europe.


John Demjanjuk, a member of the SS Totenkopf and responsible for crimes of war and crimes against humanity, arrived at Munich airport on flight N250LB on Tuesday 12th May 2009 after having been deported from the United States.

In March of this year the Prosecutor's Office of Munich filed charges against him and issued an arrest order which, according to media reports, concerns his complicity in the murder of 29,000 Jews in Sobibor concentration camp in occupied Poland.

Radio Nizkor has decided to do a specific programme to clarify some of the issues concerning existing, substantially irrefutable, evidence, and to set out the history of his crimes with respect to the Nazi extermination camps.

* * *

Demjanjuk was born on 3rd April 1920 in the Ukraine (then a Republic of the former USSR).

His service as an armed guard with the SS Totenkopf in various Nazi camps during the War has been proved (including Trawniki training camp, Majdanek, Sobibor and Flossenbürg), and the fact that Demjanjuk concealed this to enable his admission into the United States and later obtain citizenship has also been established.

Demjanjuk entered the United States in 1952 in reliance on the Law of Displaced Persons and obtained citizenship in 1958.

The District Court for the Northern District of Ohio concluded on 21 February 2002 that Demjanjuk´s entry into the United States in 1952 was illegal and that his citizenship in 1958 was also illegally obtained as a result of which it was revoked by the Court. The reason that it was illegal is that pursuant to the Displaced Persons Act (1948) visas cannot be given to any person who has participated in persecution on grounds of race, religion or national origin |1|. Service as an armed guard in a Nazi concentration camp constitutes "participation in persecution" for the purposes of this Law.

In a decision of 30th April 2004, the US Court of Appeals for the 6th Circuit ratified the judgement of the District Court.

On 28th December 2005 the then Chief Immigration Judge Michael J. Creppy, issued a removal order in respect of Demjanjuk, in what are known in the United States as "removal proceedings". The countries included in the order were Ukraine or, in the alternative, Germany or Poland.

On 21st December 2006 the Board of Immigration Appeals (the "BIA") rejected the appeal lodged by Demjanjuk and ratified the decision of the Immigration Judge.

On 30th January 2008 the US Court of Appeals for the 6th Circuit refused a request for review made by Demjanjuk and on 19th May 2008 the US Supreme Court rejected Demjanjuk´s petition for certiorari and refused to enter into an analysis of his arguments against the deportation order, which was thereby confirmed.

On 19th June 2008, various survivors and relatives of Spanish victims of the National-Socialist regime, represented by Equipo Nizkor, filed criminal proceedings in the National Court ( la Audiencia Nacional) in Madrid. These proceedings were admitted by Central Investigating Court No. 2 of the National Court on 17th July 2008. The proceedings allege that acts constituting crimes against humanity were committed against Spanish nationals and the nationals of other countries in the Nazi camps of Mauthausen, Sachsenhausen and Flossenbürg, and seek the indictment and handover of Johann Leprich, Anton Tittjung, Josias Kumpf and John Demjanjuk, (all of whom were members of the criminal organisation of the SS Totenkopf), to be tried by the Spanish Courts.

Also on 19th June 2008 the German authorities announced their interest in seeking the handover of Demjanjuk from the United States. This interest resulted in the issue of an arrest order against Demjanjuk by those authorities in March 2009, and, with this development, the deportation of Demjanjuk became practicable.

From this date on, his defence team attempted to halt the deportation. Thus, in the course of two months, from March to May, Demjanjuk's defence attorneys in the USA filed successive appeals: with the Immigration Tribunal of Arlington in Virginia - which decided against him on 6th April 2009; with the Board of Immigration Appeals - which decided against him on 10th April 2009; with the Court of Appeals for the 6th Circuit, in Cincinnati, Ohio - which decided against him on 1st May 2009, and finally before Justice John Paul Stevens in the US Supreme Court, before whom Demjanjuk´s defence team filed an urgent appeal to halt the deportation; this was also rejected by the judge on 7th May 2009.

At the same time, Demjanjuk's defence attorneys had filed an appeal in Germany seeking the withdrawal of the handover request for humanitarian reasons. On 6th May 2009 the Administrative Court of Berlin declared the appeal inadmissible. The court resolved that "even without the agreement of the Federal (German) Government, he [Demjanjuk] could be deported from the USA". "Following his arrival in Germany the return of the petitioner (to the USA) would be out of the question because the Federal Republic has the obligation to arrest the defendant on the basis of the arrest order already in effect."

The events in this intense legal battle finally led to the deportation of John Demjanjuk and his arrival in Munich, Germany on 12th May 2009.

* * *

Demjanjuk's service as an armed guard in Nazi concentration camps was documented in the course of the proceedings initiated by the US Government in 1999 to take away his citizenship.

The District Court for the Northern District of Ohio which concluded in 2002 that Demjanjuk´s citizenship was obtained illegally and therefore should be revoked, relied, in reaching this conclusion, not only on official and original wartime documents - such as his identity card as a guard- but also on the professional reports of an expert on the SS Totenkopf and on this type of documentation - Charles W. Sydnor. In fact, only 6 or 7 persons in the United States have the specialist academic qualifications of Dr. Sydnor.

Dr. Sydnor prepared an expert report for this Court dated 21st September 2000, which was complemented by two supplementary reports dated 18th December 2000 and 30th April 2001. These three reports were provided to the Spanish National Court by the relevant US authorities in December 2008 in a response to a request for judicial assistance - an International Rogatory Commission - issued by the Central Investigating Court No. 2. They form part of the documentary evidence which has been officially supplied by the US authorities.

This expert´s conclusions, accepted as admissible facts by the US Courts insofar as they concern Demjanjuk's service as an armed guard in Nazi concentration camps are as follows:

    "Iwan Demjanjuk entered German service as a guard auxiliary at Trawniki Training Camp in mid-1942. Shortly after his arrival, he received Trawniki identification number 1393 and the camp administration created Dienstausweis No. 1393 for him. Demjanjuk was issued a uniform and a rifle at Trawniki and he received training there. He also received the rank of Wachmann (guard private). On 22 September 1942, he deployed to the Manorial Estate Okzow, where he served as a guard. After this service, he returned to Trawniki and deployed to the concentration camp in Lublin commonly known as Majdanek, where he served during the winter of 1942-43. At Majdanek, Demjanjuk guarded prisoners and prevented them from escaping. On 18 January 1943, he was apprehended returning to the camp after leaving the grounds in violation of the typhus quarantine then in effect. He was punished for this infraction on 21 January. After his service at Majdanek, Demjanjuk returned to Trawniki. On 26 March 1943, the Germans ordered his deployment to the SS Special Detachment Sobibor. He arrived at Sobibor on 26 or 27 March 1943 and served there for some period of time. During his service at Sobibor, Demjanjuk guarded prisoners and prevented them from escaping. He also participated in the extermination process that was Sobibor's raison d'être. Afterwards he returned to Trawniki. On 1 October 1943, the Germans ordered Demjanjuk's transfer to Flossenbürg Concentration Camp. He arrived there by 8 October, when he was again issued a rifle, along with a bayonet. Demjanjuk served at Flossenburg until at least 10 December 1944, that is, for at least fourteen months. During his service there, he guarded prisoners and prevented them from escaping.[...]

    The prisoners Demjanjuk guarded at Majdanek, Sobibor, and Flossenbürg were held involuntarily in these places on the basis of race, religion, national origin, or political opinion. The prisoners confined at all three of these camps suffered extreme forms of ill treatment and abuse, up to and including murder. Additional persons were brought to all three of these camps specifically to be murdered because of race, religion, national origin, or political opinion. Through his service as an armed guard at these camps, Demjanjuk directly assisted the Nazi government of Germany in implementing its racial and political policies toward the peoples under its control." |2|

The District Court for the Northern District of Ohio considered the following facts proved and this conclusion was ratified in the successive appeals:

    "1. It is undisputed that Trawniki, Majdanek, Flossenburg, and Okzow were places of Nazi persecution, and that anyone who served there aided Nazi persecution.

    2. Government Exhibit 3 is a service identity pass from Trawniki Training Camp, issued in the name of Iwan Demjanjuk, identification number 1393.

    3. Prior to his naturalization as an American citizen in 1958, Defendant used the name Iwan Demjanjuk.

    4. Service Identity Pass No. 1393 states that Iwan Demjanjuk was born on April 3, 1920, in "Duboimachariwzi".

    5. Defendant was born on April 3, 1920 in Dubovi Makharyntsi (Russian: Dubovye Makharintsy).[...]

    8. Service Identity Pass No. 1393 states that Iwan Demjanjuk´s nationality was Ukrainian.

    9. Defendant is of Ukrainian national origin.[...]

    16. Service Identity Pass No. 1393 bears a photograph of a man with the number 1393 on his chest. [...]

    21. Defendant has admitted that the "Demyanyuk" signature on Government Exhibit 3 is "like" he previously wrote his name.[...]

    25. Government Exhibit 3 identifies Defendant and bears his photograph.[...]

    iii. Government Exhibit 3 is an Authentic German Wartime Document Issued to Defendant.

    40. Government Exhibit 3 is in a condition that raises no suspicion as to its authenticity".[...] |3|

The Court went on to set out the conclusions that support the authenticity of the document in question, extracted from the detailed forensic examination of the same, and stating that the authenticity is further verified by among other things: the place where the document was found; the fact that it has the distinctive characteristics of the identity cards in service in Trawniki; the type of paper, ink and typewriter used, the signatures, the stamps and its defects and because the photograph appearing on the card is the original.

It is worth highlighting that in February 2009 the Prosecutor's Office in Munich again submitted this document to further forensic tests and after satisfying itself as to its authenticity proceeded a few days later to demand the handover of Demjanjuk.

Returning to the United States proceedings, the Ohio Court also considered a proven fact that Demjanjuk arrived at Trawniki no later than 19th July 1942. With respect to the training he undertook and his activities there, the Court concluded:

    "70. The primary purpose of Trawniki Training Camp was to train men to assist the Nazi government of Germany in implementing its racially motivated policies, including and in particular "Operation Reinhard".

    71. Operation Reinhard was the Nazi program to dispossess, exploit and murder Jews in Poland.

    72. The men who arrived at Trawniki Training Camp in mid-1942 entered service in the Guard Forces of the SS and Police Leader in Lublin District.

    73. Upon his arrival at Trawniki Training Camp, Defendant entered service in the Guard Forces of the SS and Police Leader in Lublin District.[...]

    75. At Trawniki Traning Camp, Defendant received permanent personnel identification number 1393.

    77. At Trawniki Training Camp, Defendant received the rank of Wachmann (guard private).[...]

    79. Defendant received pay and was eligible for leave." |4|

After its description of Demjanjuk´s service in Okzow and in Majdanek Concentration Camp (where, according to the Court, "the Defendant served as an armed guard of prisoners whom he prevented from escaping" |5|) from where he would return to Trawniki, the Court , following chronological order, addressed Demjanjuk´s deployment to Sobibor extermination camp and his assignment to "SS Special Detachment Sobibor".

    "112. Defendant is identified on the Sobibor transfer roster at entry 30 by his name ("Iwan Demianiuk") rank, date of birth, place of birth, and the identification number 1393.

    113. The "Iwan Demianiuk" identified at entry 30 on the Sobibor transfer roster is the same Trawniki-trained guard identified on Service Identity Pass No. 1393, as they share the same name, date of birth, place of birth, and identification number.[...]

    123. The Sobibor transfer roster shows that on or about March 26, 1943, while a member of the Guard Forces of the SS and Police Leader in Lublin District, Defendant was assigned to the ""SS Special Detachment Sobibor."

    124. Service Identity Pass No. 1393 shows that the Defendant began serving at the Sobibor extermination camp no later than March 27, 1943.[...]

    128. The Germans constructed in Sobibor one of the three extermination camps for the express purpose of killing Jews as part of the Operation Reinhard.[...]

    135. Defendant returned from Sobibor to Trawniki by October 1, 1943." |6|

With reference to Demjanjuk's service at Flossenbürg Concentration Camp, where more than 150 Spaniards were imprisoned, the Court considered that:

    "138.The "Iwan Demjanjuk" identified at entry 53 on the Flossenburg transfer roster is the same Trawniki-trained guard identified on Service Identity Pass No. 1393, as they share the same name, date of birth, place of birth, and identification number."[...] |7|

The Court went on to detail the documentary evidence on Flossenbürg in which Demjanjuk appears, including a camp weapons log and a duty roster. Confirming the authenticity of these documents, the Court continued:

    "162. On or about October 1, 1943, Defendant was transferred from Trawniki to Flossenburg Concentration Camp, where he became a member of the SS Death´s Head Battalion Flossenburg. [...]

    164. The SS Death´s Head Battalion Flossenburg was the guard formation responsible for guarding Flossenburg Concentration Camp.

    165. Thousands of jews, gypsies, Jehovah´s witnesses, perceived asocials, and other civilians were confined at Flossenburg on the basis of their race, religion or national origin.

    166. Conditions for the prisoners at Flossenburg Concentration Camp were inhumane, and the prisoners there were subjected to physical and psychological abuse, including forced labour and murder.

    167. The guards of the SS Death´s Head Battalion Flossenburg participated in a guard rotation through which they guarded the camp´s prisoners and prevented them from escaping.

    168. While a member of the SS Death´s Head Battalion Flossenburg, Defendant served as an armed guard of prisoners, whom he prevented from escaping.

    169. On October 3, 1944, as part of the guard rotation, Defendant was expressly assigned to guard prisoners the following day as part of the "Bunker Construction Detail" at Flossenburg.

    170. The SS gave members of the SS Death´s Head Battalion Flossenburg blood-type tattoos under their left arms.

    171. Defendant admits having received a blood-type tattoo although he claims it was at Graz, Austria.

    172. While a member of the SS Death´s Head Battalion Flossenburg, Defendant received a blood-type tattoo under his left arm.

    173. Defendant remained a member of the Death´s Head Battalion at Flossenburg Concentration Camp until at least December 1944." |8|

* * *

Among other press articles, the British newspaper The Independent, in an article dated 13th May 2009, cited some statements of the Central Council of Jews in Germany. The general secretary of that organization, Stephan Kramer, stated that it was almost irrelevant whether Demjanjuk was imprisoned for his crimes. "What is important is that we will get a discussion about justice in post-war Germany and how the justice system has dealt with Nazi crimes," he said.

The Süddeutsche Zeitung of Germany, also in an article of 13th May 2009, and according to reports disseminated in various languages by the German Federal Agency for Political Education, stated that the proceedings against John Demjanjuk in Munich turn more on guilt than on punishment: "The trial against John Demjanjuk will no doubt be the last Nazi war trial. These last trials were and are horrible not because the Nazi henchmen have become so horribly old, but because the German criminal justice system has taken so horribly long and been so horribly lenient. Are we to think that the trial against the old Demjanjuk is now an attempt to compensate for past lapses? If so, it won't succeed. The post-war justice system's failures can no longer be atoned for. But today's judiciary can at least establish Demjanjuk's guilt. That is the only thing this trial is about - ascertaining guilt for the murder of untold thousands of people."

The trial against Demjanjuk is also important for the victims' families, according to the Dutch daily newspaper Trouw, where Johannes Houwink ten Cate, professor at the University of Amsterdam's Center for Holocaust and Genocide Studies wrote: "Whether he is condemned or not, the trial should ascertain whether Demjanjuk was in the Sobibór extermination camp, and what responsibilities he had. It will also provide greater awareness for the mass murders in Sobibór, which is important because many people ... think that all of the Jews from the occupied Dutch territories were murdered in Auschwitz. The trial (and the German criminal law system) is finally giving members of the victims' immediate families the possibility of appearing as co-plaintiffs beside the federal prosecutors with roughly the same rights. Already more than twelve immediate family members have come forward worldwide. They're after justice, not revenge. If these relatives of the victims want the trial to go ahead and wish to appear as co-plaintiffs, who can deny them that right?"

[Source: Radio Nizkor, 27th May 2009]

Documentary Note: This programme has been made using information supplied by Equipo Nizkor and based principally on the decisions of the US courts which include the expert reports of Charles Sydnor as well as information disseminated by Eurotopics, a press review on European topics published by the German Federal Agency for Political Education.


Footnotes:

1. United States v. Demjanjuk, No. 1:99CV1193, 2002 WL 544622 (N.D. Ohio Feb 21, 2002), p. 16, para 255 [Back]

2. Expert report of Charles W. Sydnor, Jr. in connection with case No. 1:99CV1193, 21 September 2000, pp 97-99. [Back]

3. United States v. Demjanjuk, pp. 1-3 [Back]

4. Ibid. p.5 [Back]

5. Ibid. p.7 [Back]

6. Ibid. pp.7-9 [Back]

7. Ibid. p.9 [Back]

8. Ibid. pp. 10-11 [Back]


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