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 of whatever doubts were raised, were quickly seized by the same passions.

For Demjanjuk’s defense both in the US and later in Israel, his family turned to the powerful, and deeply anti-Soviet, Ukrainian community in the US and Canada for financial and political support. Convinced that he was the victim of a Soviet conspiracy, they contributed $2 million for his defense and rallied a number of important members of the press and Congress to his cause, which soon became a crusade, and Demjanjuk a symbol of Soviet and Jewish persecution. Though by no means all of his supporters were anti-Semitic—and many Jews and Israelis, too, have expressed doubts about the case from the beginning—the trial soon invoked both fervent ethnic nationalism and anti-Semitism.

But the most important reason for the confusions of the case was John Demjanjuk’s own testimony, in which he told, and stuck to, a series of blatant lies.

The case against Demjanjuk began seventeen years ago when the Soviets sent the American Justice Department a list of seventy suspected war criminals who they believed were living in the US. Among them were two Ukrainians already under suspicion by the Americans: Feodor Federenko, suspected of having been a guard at Treblinka, and Demjanjuk, believed to have been a guard at another camp—Sobibor, also in Poland. In Demjanjuk’s case, the US Immigration and Naturalization Service began to question the twelve Sobibor survivors who were living in the US, but none could identify him. In April 1976 the agency sent to Israel seventeen photographs, including Demjanjuk’s 1951 visa photograph and a picture of Federenko. While none of the few Sobibor survivors questioned there could identify Demjanjuk either, several survivors of Treblinka, unexpectedly, thought they recognized his photograph as that of the gas-chamber guard of their nightmares, “Ivan the Terrible.”

A few months later, in August 1976, the Soviets again became involved: a Ukrainian newspaper published a statement that had been made at a Soviet war-crimes trial thirty years before by a former guard at Sobibor, Ignat Danilchenko. He had then told the court that the man he remembered best from Sobibor was a guard named Ivan Demjanjuk, with whom he had also, later, served at the Flossenburg concentration camp in Germany. Accompanying this story was Demjanjuk’s Cleveland address and a photograph of a German ID card issued in his name at the SS training camp at Trawniki in Poland, and showing that he had served at Sobibor.

Since nothing could be published in the Soviet Union without the agreement of the KGB, the publication of Danilchenko’s testimony suggests that the Soviets were indeed pursuing Demjanjuk—as his family and supporters have always claimed. But a former US negotiator with the Soviets doubts that this was part of a conspiracy against this one insignificant man. “They certainly didn’t like people who had emigrated to the West, and they certainly enjoyed showing America up as a haven for war criminals,” he told me. He suspects that Demjanjuk came to the Soviets’ attention when, years after his arrival in the US, he wrote a letter to his mother in the Ukraine, who had believed him dead, telling her where he was, and later when, conspicuously, his wife paid a visit to her family in the Ukraine. “They used him, as they did others, when it became convenient,” my informant said. “It was part of their game—they must have been amazed at their unexpected success.”

Demjanjuk and his family, who have denied the charges of war crimes altogether, claimed that Danilchenko’s testimony was false, and the Trawniki ID card a Soviet fake. In any event, by 1978 to 1979 the Office for Special Investigations set up by the Department of Justice to investigate suspected war criminals had become so totally committed to the testimony of the Treblinka survivors who had identified Demjanjuk as Ivan the Terrible that it simply filed away Danilchenko’s inconvenient Sobibor-Flossenburg statement. Nor, during Demjanjuk’s denaturalization trial two years later, did the federal prosecutors mention that they were in possession of another document from the Soviets, which recorded another, identical, statement by Danilchenko to a Soviet prosecutor in 1979 after a request by the OSI to interview him themselves had been rejected. “As the Soviets wouldn’t let us see [Danilchenko] ourselves, I never trusted it,” I was told by Allan Ryan, director of the OSI at that time, and now one of the four prosecutors being questioned by the US Court of Appeals. Worse, the Israelis and Demjanjuk’s defense counsel never saw Danilchenko’s 1979 statement until December 1987, when their trial was two thirds over, at which time, following the Americans’ lead, they, too, filed it away.

By 1979, while there was constant communication between the American and Soviet legal authorities, the exchanges only intensified their differences and conflicts. What the “Soviets could never understand,” another American informant told me, who also asked me to withhold his name, “was our preoccupation with the murder of the Jews. For the Soviets, the Nazis were the murderers of twenty million Russians. For us in America, ‘Nazi’ has really become synonymous with the genocide of the Jews, and our investigations of war crimes with a few exceptions were almost invariably connected with the Holocaust. This, apart from many other things, made for an enormous culture gap and distrust on both sides.”

A consequence of this distrust was that the Soviets never told the Americans that they had tried more than forty former Treblinka guards, most of whom they had executed, but some of whom they used as informants. If the Americans had seen the records of these trials (as the Israeli chief prosecutor, Michael Shaked, and Demjanjuk’s Israeli counsel, Yoram Sheftel, have finally been able to do in the past two years in newly opened Soviet archives), they would have discovered that there were many statements by these former guards which mentioned the savage Ivan the Terrible. The descriptions of his character and monstrous brutality tally in almost eerie detail, four decades later, with the memories of the Treblinka survivors at Demjanjuk’s trial.

By 1979, the OSI was subject to pressures both by right-wing politicians who wanted war-crimes prosecutions stopped, and Jewish and liberal groups who insisted they must continue. The feeling within the OSI that it had to succeed was intense, for winning the Demjanjuk case could justify the agency’s threatened existence. At the same time, they also believed they had to win it, because, pursued by the image of Ivan the Terrible, they had come to believe passionately in Demjanjuk’s guilt. “He followed me into my dreams,” prosecutor John Horrigan told me in 1986. What had totally persuaded them, he said, was that “Demjanjuk was a liar. By the time we went to trial in 1981, I had no doubt whatever that he was Ivan from Treblinka, a truly terrible man.”

Demjanjuk had claimed from the start that in 1941 he had been a Soviet soldier and had been taken prisoner by the Germans in 1942, remaining a POW until 1944, when he had been drafted into the Galician Waffen SS to fight the Russians. Not only were the investigators convinced that these were lies, but Demjanjuk had also made two extraordinary statements on official questionnaires that he had filled out in Germany before emigrating to the United States in 1951. These were to prove fatal to his case.

First was the statement that he had lived between 1937 and 1943 in Sobibor, Poland. Demjanjuk later explained that he had said this because he needed a prewar residence outside the Soviet Union to avoid being repatriated and probably executed there. Under the terms of the Yalta Agreement, this was a requirement for former Soviet citizens who did not wish to return to the Soviet Union. But as the judges in the Israeli trial noted, it was incredible that of all the towns and cities in Poland he would have happened on Sobibor—a place in the Polish forest so obscure that it was not marked on any prewar maps and could have been known only to someone associated with the extermination camp the Nazis built there in early 1942.

Demjanjuk’s second misstatement had a more harmless origin but would become, if anything, even more devastating for his case. On his US visa application he was required to state his mother’s maiden name. He has since explained that he could not remember it, and therefore said it was Marchenko, which is the Ukrainian equivalent of Smith. But his mention of that name became a key factor in convincing the OSI of his guilt. For the name Marchenko had come up in statements that the Soviets had sent to the OSI, made by two former SS guards at Treblinka who had testified that the vicious gas-chamber guard at Treblinka was called Marchenko. Although Demjanjuk’s SS ID card, which had been published with Danilchenko’s statement, and which the Soviets had later sent to the US and Israel for the trials, was in his own name and established that he had served at the Sobibor death camp, the OSI managed to convince themselves that he must have used his mother’s name at Treblinka. (Ten years later defense counsel Yoram Sheftel discovered in the Ukraine that her maiden name was not Marchenko at all, but Tabachyk.)

In 1979, the OSI received two lists containing the names of former SS auxiliary death camp guards in occupied Poland: one, from the Polish War Crimes Commission, with forty-three names of Treblinka guards, and the other, from the Soviet authorities, with two hundred of the approximately three thousand guards who had been trained at Trawniki. While Demjanjuk happened not to be on either list, both carried the name of Ivan Marchenko. Nonetheless, the OSI persisted in its belief that Demjanjuk had been “Ivan the Terrible,” using at Treblinka the name Ivan Marchenko. Neither these lists nor a subsequent letter from the Polish Commission noting that the Poles had no record of Demjanjuk were ever given to Demjanjuk’s defense or to the Israelis.

“Prosecuting Demjanjuk became an obsession for all of us,” John Horrigan told me in 1986, and Demjanjuk’s identity as Ivan the Terrible became an obsession for Israel as well. The Israelis had not wanted to hold a second war-crimes trial after the painful experience of the Eichmann trial in 1961. But the Americans’ confidence in the evidence and their desire to have the Israelis pursue a successful criminal case which would vindicate their own civil prosecutions in America created enormous political pressures for the Israelis to proceed. The trial was then used as a means of educating young people about the realities of the Nazi genocide of the Jews. As a result, the terrible accounts over many weeks by the survivors of Treblinka, heard by a live audience of hundreds of school-children and by millions on radio and television, created their own momentum. The Israelis, who had originally been reluctant, became as fully committed to Demjanjuk’s guilt as the Americans.

In the meantime, both the OSI and the Israelis had in their possession documents that should have cast further doubt on Demjanjuk’s identity as Ivan the Terrible. One was a report from the Treblinka “Nazi-crime” trial in Düsseldorf in the early Sixties. When an SS corporal called Gustav Münzberger, who had supervised the gas-chamber operation in Treblinka, was asked what had happened to the infamous Ivan the Terrible, he testified that Ivan had traveled in his convoy to Trieste in September 1943, after the death camp was dismantled, and that he had later joined the partisans. This statement was later reinforced by another document, which surfaced in Italy in 1986. This was a letter to an Italian journalist from a former SS sergeant at Treblinka, Franz Suchomel, who wrote that “Ivan—the gas-chamber filler from Treblinka” had worked at a rice warehouse in Trieste that had served as a camp for Jews from October 1943, and (again) that he had later gone over to the partisans.^*

And then, of course, there was that most suppressed document of the case, Ignat Danilchenko’s account of having served at the Sobibor camp with Demjanjuk in early 1943 and later at Flossenburg. If Danilchenko was telling the truth, and Demjanjuk was at Sobibor from March 1943 and at Flossenburg from March 1944, and never in Trieste, then in all logic he could not have been Ivan the Terrible. But by that time, no one wanted to know about Demjanjuk at Sobibor: Demjanjuk’s family and defense denied that he had served the Germans in any camp whatever; while the prosecutors in both the US and Israel saw him only as the Ivan of Treblinka. Danilchenko’s testimony that Demjanjuk had served at Sobibor, and the German SS men’s statement about Ivan at Trieste cast doubt on that certainty, and so they were put aside. Only now, fourteen years later, has Danilchenko’s statement become instrumental in refuting the claim that Demjanjuk was Ivan the Terrible, and in confirming that he did indeed serve as a guard in at least two other camps.

(Danilchenko had settled in Siberia in 1958 after his amnesty from a twenty-five year sentence to a gulag. Convinced that his statement was central to the case, I traveled to Siberia in January 1990 to seek him out after receiving information that he was living there in Tobolsk with his wife. He wasn’t: he had died in 1985. But his wife, Olga Petrovna, was there. She had met him in 1956, when she was “assistant station master to the 58th Halt,” the railway stop for Danilchenko’s gulag, and married him in 1958 when he was set free. He had never told her, or their two children, the truth about where he was during the war, but the fable he concocted to tell her about his friend Demjanjuk neatly paralleled the statements he had made to the court of their friendship in Sobibor—except that, of course, to his wife he never mentioned that name, or Flossenburg. But the fable, so full of details I already knew from Danilchenko’s statement, was to me a powerful confirmation that that statement was true. I was now sure that Demjanjuk could not have been the Treblinka Ivan.)

The question remains nevertheless why so many survivors of Treblinka identified Demjanjuk as Ivan the Terrible. It is true that in his 1951 visa photograph, taken when he was thirty-one, Demjanjuk bears some resemblance to the thirty-year-old Marchenko, of whom a photograph was found in Russian files. But this alone cannot explain the survivors’ testimony. The truth is that the identification process in Israel was itself flawed.

Miriam Radiwker, the respected lawyer who had been initially assigned to the investigation in Israel, proceeded by placing advertisements in Israeli newspapers identifying Demjanjuk and Federenko by name and giving Sobibor and Treblinka as the alleged locations of their crimes. She pasted their photographs next to each other at the bottom of an album page that also contained five other, but markedly smaller, photographs of other men accused of war crimes, and showed the page to survivors she knew. Many of them were regularly in touch with one another, yet it was stated at the Israeli trial—and accepted by the judges—that the witnesses identifying Demjanjuk as Ivan the Terrible had done so independently.

But while the devastating testimony by the Treblinka survivors had the greatest impact on the trial, it was Demjanjuk’s falsifications of almost every part of his wartime career that made his one truth—that he was not the Treblinka Ivan—unacceptable.

Had he been prepared to admit that he had been a simple and desperate twenty-two-year-old in a dreadful German POW camp, who to save his life agreed to serve as an SS guard in Sobibor, he might have been believed. But from his point of view there may have been two reasons why he had to persist in lying: one was his quite justified fear of the Soviets. Since he had been shown to have lied on his US visa application (and this applied whether he was at Treblinka or at Sobibor) his denaturalization was a foregone conclusion. Although the Israelis would not have asked for his extradition for having been an anonymous guard at Sobibor, he might have been deported to the Soviet Union, and, if so, been executed there, as Feodor Federenko was. What also doubtless weighed heavily upon him, however, was that, like many other men who collaborated in the Nazis’ murders—and I have talked to a number of them—he could not bear to have his children know what he had done.

Thus Demjanjuk protected his three children from this knowledge. Throughout their childhood, he was silent about his war years; and after he stood accused, he told ever more hapless lies in order to maintain his cover story to them. This only reinforced first the prosecutors’ and then the courts’ belief in his guilt.

On the last day of the Israeli trial, when Demjanjuk’s case seemed doomed, Defense Counsel Yoram Sheftel, in a desperate gamble to avert his conviction, produced Danilchenko’s 1979 statement, saying that he had just received it from Washington under a Freedom of Information order lodged by the Demjanjuk family. If that statement, which placed Demjanjuk at Sobibor, was genuine, he told the judges, then they would have to throw out the testimony by the Treblinka survivors, which placed him at Treblinka at the same time. Sheftel was trying, at the very least, to create doubt in the judges’ minds. But he failed.

In view of this development, asked the president of the court, Judge Levin, visibly surprised, shouldn’t Mr. Sheftel advise his client even now, at the last minute, to change his story? If Demjanjuk now wished to admit to having been at Sobibor, he said, it would diminish the importance of the testimony of the eyewitnesses from Treblinka; if, however, he struck to his alibi that he had been a POW and then a member of the German Army, and the court in its deliberations disbelieved it, then the survivors’ testimony would necessarily outweigh anything else.

But Demjanjuk stuck to his alibi and, incomprehensibly, the judges rejected the prosecution’s request for extra time to consider the implications of Danilchenko’s statement. Six weeks later, the judges accommodated Danilchenko’s statement to their guilty verdict by concluding that it could, after all, be squared with Demjanjuk’s identity as Ivan the Terrible: he could have commuted between Treblinka and Sobibor (sixty-five miles from each other on bad Polish roads). They ignored the rest of the statement mentioning Flossenburg, as well as the information that the Treblinka gas-chamber Ivan had gone to Trieste, as if these had no relevance.

I believe that, rather than any base motives, it was the horror of “Ivan the Terrible” pervading the investigation of the case that led the American prosecutors to persuade themselves of Demjanjuk’s guilt and to treat so irresponsibly the evidence in their possession.

What this meant, however, was that the Israelis were arriving at their decisions on the basis of incomplete, and thus false, knowledge: in 1986 they had asked to see all the OSI communications with the Soviets pertaining to this case. This would have had to include Danilchenko’s statement and excerpts from others made in the course of Soviet trials, as well as a hundred pages about Demjanjuk which the Soviets had handed over to the Americans in December 1979. Almost all of this was withheld from them, and this put the defense in Israel and the Israeli prosecutors at a crippling disadvantage for the proper pursuit of the case.

What is thus finally most appalling is not the mistakes made by the beleaguered Israeli judges, however worrying they seemed to some of us at the time. It is the fact that after dragging the survivors yet again through a harrowing court case, the Israeli prosecutors and then the judges were forced to try that case based on false premises, because they were not provided with the evidence that would have created doubt.

There are still those—survivors and others—who maintain that Demjanjuk must have been “Ivan the Terrible.” They need to believe it because it is unbearable for them to find that all the sorrow, the anger, the pain, and all the effort have come to nothing. But if we now know that John Demjanjuk was not that particular monstrous man, it is also now proved beyond doubt, by documents with his name and ID number found last year by the Israeli prosecutor, Michael Shaked, in the just opened Soviet court files and in German archives, that he did serve as an SS guard in the extermination camp at Sobibor, and in the concentration camps at Flossenburg and Majdanek as well. At Flossenburg he is on several guard-roster and weapon-distribution lists; from Majdanek there is a charge sheet accusing him and two other guards of a minor infraction of SS rules. While this establishes that Demjanjuk was an SS guard, it cannot help the judges in deciding the extent of his guilt, because we don’t know what he actually did.

The truth, however, further reinforced by the documents—and now a moral rather than a legal matter—is that Demjanjuk is a guilty man, even though no longer provably guilty of specific deeds, for, sadly, there are virtually no people left who can reliably testify about his specific actions. For the survivors, too much time has passed, too much suffering has been endured, too many horrible impressions have been engraved in their minds; and inevitably memories and nightmares, truth and hearsay, have become blurred.

If the judges overthrow the verdict, perhaps they will find another way to deal with Demjanjuk. But whatever words they find, I hope they can ensure that an acquittal on a flawed charge cannot be interpreted as a statement of innocence. For all men who became party to such awful crimes in that war, and in wars since, must be in no doubt, to the day they die, that the world not only knows and abhors what was done, but deplores them.

FROM IGNAT DANILCHENKO’S STATEMENT, NOVEMBER 21, 1979

…Demjanjuk, like all guards in the [Sobibor] camp, participated in the mass killing of Jews. I also participated in this crime and I was convicted and punished for it. While I was at the camp I repeatedly saw Demjanjuk, armed with a rifle, together with other guards and, in many cases, myself, guard prisoners in all areas of the camp, from the unloading platform to the entrance into the gas chamber. Demjanjuk escorted people until they reached the gas chamber to avoid violations by the prisoners of the “procedure” in which they were sent to be killed. I cannot specifically say under what circumstances or how many groups of prisoners Demjanjuk escorted to the gas chamber during his service in the camp, since this was constant, daily “work.”

I did not see whether Demjanjuk shot anyone while they were being sent to the gas chamber. Such cases occurred in the camp if the prisoner showed any kind of resistance. It is difficult for me to say who shot the sick and weak prisoners in the “infirmary.” It is possible that they were shot by guards on orders from the Germans, but at present I can state nothing specific about this. I do not know whether Demjanjuk participated in the shootings of sick prisoners. Together with Demjanjuk, I had to guard the place where the prisoners were unloaded from the railroad cars. I saw Demjanjuk and other guards push the Jews with rifle butts and hit them: this was a common occurrence during unloading. It is therefore difficult to single out the actions of Demjanjuk in treating the prisoners.

Demjanjuk was considered to be an experienced and efficient guard. For example, he was repeatedly assigned by the Germans to get Jews in surrounding ghettos and deliver them in trucks to the camp to be killed….

—September 10, 1992