The desire to forget lengthens exile, and the mystery of salvation is called remembrance.
Inscription at Yad Vashem, Israel’s official memorial to the victims of the Holocaust
Lawrence Douglas’s The Right Wrong Man is an essential read for anyone involved in international criminal law. It is an exceptionally well-written, well-researched, and well-reasoned treatment of the events, circumstances, challenges, and resolutions of bringing John Demjanjuk to account for being “the ultimate replaceable cog in an exterminatory machine…not because he committed wanton murder, but because he worked in a factory of death. He was convicted of having been an accessory to murder for a simple and irresistible reason – because that had been his job.”1 Lawrence Douglas, The Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes Trial 16 (Princeton University Press 2016).
Douglas, a professor at Amherst College and author of several books on the Holocaust, is both a master storyteller and a brilliant legal analyst. He has an uncanny ability for linking events and drawing out plausible and convincing inferences, while indulging in measured, if not generous, justifications for errors and oversights by individuals and institutions involved in and dealing with bringing to justice those involved in Nazi-era crimes.
I had come across the title of the book when it first came out earlier this year, but it did not seem to be the type of book I wanted to invest the time in reading. Maybe I would eventually come across a short review, but I saw no point in reading anything more about Demjanjuk. I was in law school when he was in Federal Court in my hometown of Cleveland, Ohio. I recall how controversial it was at the time – going after this rather elderly Ukrainian auto-worker living in suburb of Cleveland for being a Nazi camp guard, with rather inconclusive or spurious evidence, which some believed was the handiwork of the evil empire, the Soviet Union. His denaturalization and extradition cases seemed to go on forever, until it was reported in the press that Demjanjuk was in Israel being tried as the notorious Treblinka extermination camp guard known as Ivan the Terrible. While I was not surprised to learn of Demjanjuk’s conviction and death sentence, I was stunned to later learn that the Israeli Supreme Court reversed the conviction. I remember thinking of the intellectual and judicial courage it must have taken for the justices of the Israeli Supreme Court to overturn such a conviction. But as soon as Demjanjuk was back in Cleveland, he was in the news again, eventually (many years later) heading off to Germany to be tried. And when Demjanjuk finally went to trial and I saw the photos of him lying on a gurney wearing a baseball cap and sunglasses, I wondered what kind of trial this can possibly be. The optics were as terrible as (I now come to find out) they were misleading.
Years later I would find myself representing Ieng Sary in somewhat similar physical circumstances in a courtroom in Phnom Penh, Cambodia, at the ECCC. Ieng Sary was for all intents and purposes unable to follow the proceedings. As he struggled to stay awake from painkillers and heart medication, I made numerous applications to the Trial Chamber, which at one point made it virtually impossible for me to make a record of Ieng Sary’s condition to show that he was being denied his fair trial rights. Ieng Sary died before the Supreme Court Chamber of the ECCC could deal with my appeals against the Trial Chamber’s denial of my applications.2 See http://www.iengsarydefence.org/tag/fitness-to-stand-trial for the various submissions I filed related to Ieng Sary’s fitness to stand trial.
Maybe it was because of my experience with the Ieng Sary case that I subconsciously dismissed The Right Wrong Man as not worth reading: why bother to waste time reading about a trial of a half-conscious nonagenarian for events that occurred some 60 years earlier? Luckily, a good friend (and brilliant judge and former defense lawyer extraordinaire) recommended this gem of a book, thinking I would find it interesting given my line of work. Indeed, he was right. And now I am recommending it to my friends, colleagues, and anyone serious about international criminal law.
Demjanjuk was born in Ukraine in 1920. By his own account, he had a fourth-grade education. He was 12 years old when the great famine of 1932-33 known as Holodomor struck Ukraine, killing an estimated three million people. Sometime in his late teens, he joined the Komsomol, a communist youth organization. In 1941 he was drafted into the Red Army – just after the German invasion. Demjanjuk’s story becomes a bit murky after this point. His own account of where he was and what he was up to is highly suspect. For certain he lied in his entry documents to the United States. As a clever though inconsistent confabulator, Demjanjuk allowed himself to be convicted and sentenced to death in an Israeli court (and face potential execution), rather than reveal that he was not the Ivan the Terrible of Treblinka; an admission that would have required him to account for his involvement as a camp guard at Sobibor, another infamous extermination camp, where approximately 28,060 Jews, mainly from The Netherlands, were murdered. In May 1942, Demjanjuk was captured by the Nazis. Faced with the prospect of either forced labor or collaboration, Demjanjuk chose the latter, thus receiving training to be a camp guard, and ultimately finding himself at Sobibor.
After the war, Demjanjuk eventually made it to the US in 1952, became a US citizen in 1956, and began living the American dream: a well-paying job, nice house in the suburbs, and leisure time for hobbies, church-going, and civic activities, etc. Until 1975. It all came crashing down when his war-time activities were brought to the attention of the US authorities. By the late 1970s, Demjanjuk was considered to be the infamous Ivan the Terrible of Treblinka. Demjanjuk would spend the remainder of his life fighting against denaturalization (twice), extradition, deportation, and charges of having committed or participated in mass atrocities. He would be convicted in an Israeli court and sentenced to death, only to have his conviction overturned by the Israeli Supreme Court. He would return the US only to be deported to Germany where he would be tried, convicted, sentenced, and ten months later, while the appeal was pending, finally die.
Demjanjuk was convicted on an argument (theory of the case) that in the words of Douglas, “was as simple and irresistible as a syllogism:
All Sobibor guards participated in the killing process.
Demjanjuk was a Sobibor guard.
Therefore Demjanjuk participated in the killing process.”3The Right Wrong Man, p. 218.
Of course, through this deductive reasoning, even if the major and minor premises are proven to be true, the conclusion, in my opinion, would not axiomatically lead to a conviction. Here is where Douglas shows, rather convincingly, the importance of historical evidence (or the use of historians as experts) in filling in the gaps and – barring evidence to the contrary – proving that Demjanjuk must have participated in the murders of the Jews at Sobibor while he was there as a guard in 1943. The expert testimony of historians established how Sobibor functioned as a camp, the functions and duties of the guards, the near 100% extermination rate of the Jews, and most importantly, that guards, including those who were Nazi collaborators, had escaped from their posts and even when caught were not killed. This last point is essential, if not the linchpin of the prosecution case in the Demjanjuk trial in Munich. Once Demjanjuk could be conclusively placed as a guard at Sobibor while it functioned as an extermination camp, the onus would be on Demjanjuk to either dispute the historical evidence that guards could escape and thus avoid being part of the murderous enterprise, or show that he dare not escape lest he face certain death. Douglas surmises that had Demjanjuk availed himself of the plausible defense that he had no choice, it might have carried the day – or at least caused difficulties for the prosecution. Douglas muses, what if the defense had offered this theory of defense:
Before arriving at Sobibor, Demjanjuk had naively imagined it to be a camp like any other. Upon his arrival he was horrified to discover a diabolical factory of death, and immediately began planning his desertion, but on the day before he was to attempt his escape, two colleagues, who had deserted the week before, were captured, brought back to the camp, and executed on the spot, overwhelming him with fearful certainty that his only choice was to continue as a guard or die – and with the dreaded knowledge that he was not heroic enough to risk the latter.4 Id., p. 241 (italics in original).
Such a theory of defense would have required Demjanjuk to take the stand and testify. Anything short of Demjanjuk recounting what he observed and felt and his reasons for not taking any affirmative actions to extricate himself (defect) would have no weight. Demjanjuk opted to remain silent. But worst yet, his defense lawyer ran the ultimate inconsistent theories of defense: Demjanjuk was not at Sobibor; but if he was, he did not murder any Jews. In the end, Demjanjuk was found guilty as an accessory to murder; having the semblance of a free will to extricate himself from the involuntary situation he had been placed in by the Nazis, he chose to remain on duty at Sobibor rather than defect.
Douglas uses Demjanjuk’s personal and legal odyssey as a vehicle to educate the reader about the past and to advance his take on the use of historians as experts (“trials by history”) in future trials of mass atrocities. In The Right Wrong Man, Douglas takes us to the US, where the “Nazi next door”, when discovered, faced civil or administrative proceedings; individuals went through immigration proceedings rather than face serious criminal charges for having participated in mass atrocities. The Demjanjuk case brought this perversion to the forefront, ultimately changing the US’s approach to how these sorts of cases would be handled: they would henceforth be handled through the Justice Department. This would in turn change the paradigm on how the evidence would be collected, the use of historians as experts in building cases for prosecution, etc.
Douglas also walks us down history lane through the suspicious and non-cooperative Cold War period, when getting accurate and verifiable documents from the Soviet Union and the Eastern Bloc was problematic. We see how Israel was initially reluctant to accept Demjanjuk for prosecution because of the success it had achieved – and which was hard to match – with the Eichmann trial. But once Israel did decide to have Demjanjuk extradited and tried, the formula that worked in securing Eichmann’s conviction – the use of eyewitnesses / Holocaust survivors to tell a coherent and compelling story – proved ultimately to be the undoing of Demjanjuk’s conviction. By the time Demjanjuk was tried in Jerusalem, the Holocaust survivors were old, with faded, questionable, and in some instances suggested memories; their eyewitness identification of Demjanjuk proved to be mistaken.
Douglas is excellent in discussing the post-Nuremberg cases and how the German legal and judicial system effectively failed to adequately deal with the Nazi-era crimes. By his account, however, the Demjanjuk case was a watershed moment:
Those who argue that, because earlier courts had anticipated the theory of functional liability, the Demjanjuk ruling represented less a paradigm shift than a correction of doctrine that had wandered off in the wrong direction may be technically correct. Yet there is no denying that for decades, German jurists tortured history by pigeonholing Nazi atrocities into conventional murder statutes. In revising a theory that had never properly taken hold in German case law, the Munich court found a way to grasp the essential logic of genocide while still working within available statutory strictures. The result was a crucial reorientation. In [Hannah] Arendt’s terms, the Demjanjuk trial succeeded at correcting the “pernicious” and “common illusion” that the “crime of murder and the crime of genocide are essentially the same.”5 Id., p. 256, quoting Hannah Arendt, Eichmann in Jerusalem 272.
The Right Wrong Man invites us to re-think individual responsibility where the crimes are inspired by and the product of state sponsorship. Douglas poignantly shows through his lucid narrative, and well-documented and critical legal reasoning, that the Demjanjuk case “demands that we think carefully about the nature, causes, and possible justifications of collaboration in the perpetrations of atrocities. And it provides a crucible in which three distinct national legal systems – the American, the Israeli, and the German – sought to create legal alloys potent enough to master the legal challenges posed by the destruction of Europe’s Jews.”6 Id., p. 3.
Demjanjuk’s Munich trial was a trial by historical expert.
That said, Douglas rightly notes – at least in the holocaust context – that Arendt was only partially right when she observed that “[t]he purpose of a trial is to render justice, and nothing else; even the noblest of ulterior motives [such as making a historical record of Hitler’s regime] can only detract from the law’s main business: to weigh the charges against the accused, to render judgement, and to mete out due punishment.”8 Id., p. 7 (internal citations omitted). Trials of mass atrocity cases will inextricably have a didactic or pedagogical component by the need to contextualize the environment (including that of the individual perpetrator who stands accused) in which the crimes were committed. To this end, the Demjanjuk case serves as a good example. And in no small measure The Right Wrong Man enriches our understanding of how mass atrocities were dealt with, both at national and international levels, from Nuremberg to today.
|↑1||Lawrence Douglas, The Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes Trial 16 (Princeton University Press 2016).|
|↑2||See http://www.iengsarydefence.org/tag/fitness-to-stand-trial for the various submissions I filed related to Ieng Sary’s fitness to stand trial.|
|↑3||The Right Wrong Man, p. 218.|
|↑4||Id., p. 241 (italics in original).|
|↑5||Id., p. 256, quoting Hannah Arendt, Eichmann in Jerusalem 272.|
|↑6||Id., p. 3.|
|↑7||Id., p. 14.|
|↑8||Id., p. 7 (internal citations omitted).|