What could be less controversial than trying an alleged Nazi? In the case of John Demjanjuk, the case is not so simple.
Needless to say, if he is a Nazi he deserves not a shred of sympathy, leniency or mercy. The fact that he is 89 and decrepit speaks not for leniency, but for the opposite. If he is, indeed, a former Nazi, then the fact that he is old and decrepit means only that he cheated his victims twice, evading justice for decades.
There is another fact that is relevant: the principle of double jeopardy. Demjanjuk was already tried as a Nazi and convicted but then, stunningly, released from an Israeli prison. Upon further consideration of the evidence, it did not show definitively that he was Ivan the Terrible of the infamous Treblinka concentration camp. Now he is being tried for allegedly being another Nazi, a different person, this time a Nazi guard in the Sobibor, Majdanek and Flossenburg concentration camps. The specter of double jeopardy or at least its spirit looms.
Recall: In the 1980s there was a tremendous wave of accusations that fell upon Demjanjuk in his Cleveland suburb. Person after person swore, both figuratively and literally, in court, that he was Ivan the Terrible. These witnesses, and their backers in both the US Justice Dept. and various Jewish organizations, demanded that he be punished for the unspeakable crimes and sheer brutality of Ivan the Terrible. Given that Demjanjuk had lied on his application for US citizenship, and given the certainty of the witnesses, it seemed right to deport him for trial to Israel. And so it was.
But after seven years in an Israeli jail, he was released. What does this say about the credibility of the witnesses against him then? Either that they were overzealous, or that he indeed was Ivan the Terrible but the evidence did not rise to the level necessary for a conviction. Either way, it strains credulity for other people or perhaps even the same people to now swear that he was another person, another Nazi, in another concentration camp. To put it mildly, something is drastically wrong in the process of the legal pursuit of John Demjanjuk.
The issue transcends the justice he deserves if, in fact, he was Ivan the Terrible, or the different concentration guard he is now accused of being, or some other Nazi, or even, remotely, one and the same person, working his evil at different times in different places during WW II. The issue is the integrity of the judicial process against ex-Nazis. At this late date, that integrity affects not so much other trials of ex-Nazis, of which none or next to none are on the horizon. Of far greater moment, that integrity affects the accuracy of the historical record, which, as we sadly know, Holocaust deniers and their ilk are only too happy to challenge.
It is of far greater importance that the accuracy and fairness of the legal pursuit of ex-Nazis be flawless than that John Demjanjuk be tried a second time after the first time has been conceded, by no less than an Israeli court, to have been deeply flawed.
To try Demjanjuk a second time might not rise to double jeopardy in the technical sense his second trial is in a different jurisdiction, indeed, a different country (Germany, not Israel); and he is not being tried a second time for being the same Nazi, Ivan the Terrible. Frankly, these technical differences are irrelevant. The primary point of trying ex-Nazis in the first place is to contrast justice against injustice, to contrast civilization against Nazism, to contrast due process of law against suspension of all law under a Fuhrer. The primary point is to make a public statement, not to put away a person for crimes that no jail, and no sentence, not even the death sentence, can possibly punish anyway.
The point of trials of ex-Nazis is public pedagogy. The point is a warning to those who might be considering Nazilike actions of their own. The point is the education of the younger generation in Germany and in the countries of Germanys accomplices. The point is the dignity of the law, as against its utter subversion in wholesale murder.
These purposes behind the application of justice to ex-Nazis are compromised when the same person is pursued, first by legal means that turn out to be deficient; and then pursued over again. This looks like exploitation of the legal system for raw revenge, and manipulation of the legal system to achieve a preconceived outcome, even if inaccurate. It does not look like public pedagogy. In the case of trials of ex-Nazis, how things look is the primary point.
Germany should drop its case against Demjanjuk. The only crime he is now appropriately charged with is his only crime that is undeniable: lying on his application for US citizenship. For that he has already been deported, and rightly so. The integrity of the response of the Jewish people toward ex-Nazis now demands that Demjanjuk be left alone. At stake is not just Demjanuks trial, but, retroactively, public perception of all Nazi trials since Nuremberg.
If, in fact, Demjanjuk is a former Nazi guard and murderer, the legal experts who botched his case the first time have only themselves to blame for his freedom. But the larger cause the dignity of the law, the higher purpose of the legal pursuit of ex-Nazis, the post-Holocaust legal reputation of the Jewish people demands that freedom.
