Arendt in Jerusalem, Demjanjuk in Munich
THE MUNICH TRIAL of John (Ivan) Demjanjuk was in certain respects unremarkable. The Ukrainian-born Demjanjuk stood accused of complicity in the deaths of 28,060 Jews during his service as a guard at the Sobibor extermination camp. The figure was surely horrific, and yet the crime itself—accessory to murder—was relatively inconsequential against the larger sweep of Nazi genocide. Demjanjuk himself remains a limited man. No longer the bulky, histrionic defendant tried in Jerusalem over twenty years ago, the ostensibly ailing Demjanjuk was more an absence than a presence in his Munich trial, both because his numerous medical complaints required frequent cancellations of court dates and because at trial he chose to remain silent, gurney-bound and hidden behind dark glasses. The German case against Demjanjuk was almost exclusively built on documentary evidence—no more than a handful of Sobibor survivors remain alive and none could recollect the defendant, much less identify him. And so the trial at times was dull, as trials often are; Rebecca West memorably called the Nuremberg trial, also a case built around documents, a ‘citadel of boredom’.1 Originally expected to last four months, the trial limped on for eighteen as court days were short—only three hours per day of trial, a gesture of accommodation to the nonagenarian accused—and frustratingly intermittent, in part because of medical cancellations, in part because the single courtroom in Munich large enough to accommodate the press and spectators was also booked for other high-profile trials, and thus had to be run something like a repertory theatre.
The verdict announced on May 12, 2011, in which the court sentenced Demjanjuk to five year’s prison and then promptly released him pending appeal, seemed only to cast doubt on the importance of the proceeding. And while Demjanjuk’s conviction promises to bring to a close the era of high-profile Nazi atrocity trials that reaches back to Nuremberg and brought us other memorable proceedings, such as the Eichmann trial in Jerusalem in 1961, the Frankfurt-Auschwitz trial (1963–65), and the French trials of Klaus Barbie (1987) and Maurice Papon (1997–98), the fact that this era should end with Demjanjuk in the dock represents a stunning denouement. For it is undeniably the case that Demjanjuk would never have been tried in Munich if he had not once been mistaken for someone else.
Ivan Demjanjuk emigrated to the United States in 1952 and became a citizen in 1958, changing his first name to John. He worked for decades as a machinist at a Ford plant while raising a family in suburban Cleveland.2 His legal problems began over thirty years ago, when prosecutors in what became the Office of Special Investigations (OSI) in the Justice Department received material, passed on from Soviet sources, indicating that the native Ukrainian had been trained at the Trawniki camp, an SS training facility, and subsequently had served as a guard at Sobibor, one of the three ‘pure’ extermination facilities, along with Treblinka and Belzec, constructed by the SS in the spring of 1942 in Poland as part of Operation Reinhard, the planned elimination of the Jews of Poland. Of the 250,000 Jews who passed through Sobibor less than sixty survived, and the greatest number of these settled in Israel. But when the OSI asked the Israeli Police to assist its investigation, an odd thing happened at the identification parades conducted by the Israelis. Sobibor survivors failed to recognise a contemporaneous photo of Demjanjuk, while a number of Treblinka survivors, enlisted to assist the investigation of a completely unrelated case, blanched at a photo of Demjanjuk. This, they insisted, was the operator of the Treblinka gas chamber, a guard whose unusual cruelty had earned him the sobriquet Ivan Grozny, ‘Ivan the Terrible’. As far back as the Eichmann trial, witnesses had testified about the legendary sadism of Treblinka’s ‘Ivan the Terrible’; now, after a lengthy extradition process, Demjanjuk was flown to Israel to stand trial as the notorious Treblinka guard.
Demjanjuk’s arrival in Israel in 1986 created a stir that reminded many of the capture of Adolf Eichmann a quarter-century earlier. The trial of ‘Ivan the Terrible’ would be the first Nazi perpetrator trial in Israel since that of Eichmann. Capturing the spectacle-like quality of the proceeding, the Demjanjuk trial, like the Eichmann proceeding before it, was to be staged not in a conventional courtroom, but in a theatre-like public space retrofitted to accommodate over 300 spectators. In 1961, Israelis had followed the Eichmann trial live on radio, the first trial so broadcast; now they could watch the Demjanjuk trial live on television, the first trial to be televised in Israel’s history. And both trials were staged to serve explicitly didactic purposes: to instruct successive generations of Israelis of the horrors out of which the Zionist state was created.
Only Demjanjuk’s Jerusalem trial turned into less a re-enactment than a pathetic caricature of its famous predecessor. Part of this had to do with the contrasts between the two men. I think it is fair to say that Eichmann helped make his trial a tremendous success. In contrast to the hectoring, belligerent courtroom behaviour of, say, Slobodan Milosevic or Saddam Hussein, Eichmann was an ideal defendant, snapping to his feet when the judges entered the chamber, answering their questions with precision and deference. Arguably the very craven obedience to authority that helped turn Eichmann into a perpetrator of genocide made him into a model defendant. And with his dour bank teller appearance, humourless demeanour and formal manners, Eichmann delivered an unforgettable image of Arendt’s ‘banality of evil’.
Demjanjuk, by contrast, looked like he had just been plucked from a beer hall. Big, beefy and boisterous, Demjanjuk enjoyed, during lulls in the trial, entertaining his guards with the bits of mangled Hebrew he had picked up in his jail cell. On the stand he proved to be a terrible witness on his own behalf—not because he betrayed traces of his alleged former cruelty, but because he seemed incapable of telling a coherent story. He claimed never to have set foot in the Trawniki SS facility and never to have worked as a camp guard anywhere at any time. He insisted that he spent the last years of the war as a prisoner of war, surviving in a brutal German POW camp. But when asked to name the camp, he could not; and when pressed to describe his activities as a POW, he openly contradicted himself. His story was so implausible, the gaps in his memory so large and unbelievable, his alibi so riddled with contradictions, that the presiding judge felt obliged to interrupt his testimony to explain the importance of a coherent alibi in a criminal trial. But if anything, Demjanjuk appeared baffled by the very need to account for his actions.
In part thanks to his incoherent alibi, Demjanjuk found himself condemned to death, only the second person in Israeli history, after Eichmann, to be convicted of a capital crime (Israel had abolished the death penalty except for the most extreme crimes such as genocide). The lengthy process of appeals, automatic in Israeli law in capital cases, coincided with the unravelling of the Soviet Union, and so both Demjanjuk’s prosecutors and the defence attorneys were able to gain access to long-mouldering KGB files that suggested precisely what the Israeli trial court had considered and dismissed as far-fetched: that there had been two Ukrainian ‘Ivans’, one at Sobibor and one at Treblinka, who bore a small but not entirely negligible resemblance to one another—both, for example, had round heads, thinning hair and protruding ears. This information suggested that ‘Ivan the Terrible’ had been one Ivan Marchenko, a Ukrainian who, after serving at Treblinka, was apparently killed in fighting in the Balkans toward the war’s end. This material did not entirely exculpate Demjanjuk—to the contrary, it only strengthened the certainty that Demjanjuk had been a guard at Sobibor, what the OSI evidence had originally suggested. But the Israelis had tried, convicted and sentenced Demjanjuk to death as ‘Ivan the Terrible of Treblinka’, and the new material did cast doubt on whether Israel was about to execute the right ‘Ivan’. And so the Israeli Supreme Court voided the conviction—at the same time that it excused the trial court of any mishandling of the proceeding.3 The latter gesture was disingenuous. The three-judge trial court had treated the proceeding as a national oral history and Holocaust commemoration project. For the court, the living memory of survivors was to serve not only as the instrument of indictment and as a tool for preparing the gallows; it was also to provide a means for vouchsafing history against Holocaust deniers. Swept up in its historic mission, the trial court fatally insisted that the intensity of survivors’ memories of the camp provided the surest measure of the accuracy of their identifications of Demjanjuk. This assumption, born more of a respect for the lived trauma of survivors than of a sober legal assessment of testimony, was quietly but emphatically rejected by the Supreme Court.
After his release from Israeli prison, Demjanjuk returned to suburban Cleveland and succeeded in having his US citizenship reinstated. This triggered a fresh struggle between Demjanjuk and the OSI, which, embarrassed by the collapse of the Israeli case and by a finding by a Federal court that it had suppressed evidence of its own doubts about Ivan the Terrible, redoubled its efforts to see the Sobibor guard deported. Since the early 1950s, the United States had adopted a distinctive policy, strengthened through federal law, of dealing with suspected Nazi perpetrators who had settled in the country after the war. Rather than try them under domestic criminal law, a course that would have raised thorny jurisdictional problems, the United States brought civil charges against persons suspected of lying on immigration forms; in cases of successful denaturalisation, the United States would deport the suspect to his or her country of origin, or to another country that could claim proper jurisdiction for a criminal trial. The Justice Department achieved its goal of having Demjanjuk’s citizenship revoked for a second time in 2002; only now the United States could find no country willing to accept him. That struggle ended when German prosecutors expressed a willingness to bring charges, and in May 2009, Demjanjuk found himself bundled onto a small government jet and flown to Germany. Half a year later, in the end of November 2009, his trial started in Munich.
Hannah Arendt famously argued that the Eichmann trial ‘never rose to the challenge of the unprecedented’,4 an argument that she repeated several years later at the time of the Frankfurt-Auschwitz trial. For Arendt, it was crucial that the law use or forge the proper idiom of criminality, the adequate legal incrimination, capable of naming and condemning the unprecedented nature of Nazi atrocities. This idiom, she argued, was available at the time of the Eichmann trial—it was the most significant conceptual innovation of the Nuremberg trial of the major war criminals—only the Jerusalem court largely ignored it. The Eichmann court’s failure to build on Nuremberg’s understanding of crimes against humanity was, for Arendt, one of the trial’s many shortcomings. The gravamen of the prosecution’s case against Eichmann was so-called ‘Crimes against the Jewish People’, which, Arendt lamented, made the Holocaust sound like simply a more elaborate form of a nineteenth-century pogrom.5 Worse, the incrimination introduced an untenable and vaguely incoherent specificity into criminal law, as if the legal definition of ‘murder’ could turn on the ethnicity of the victim: The defendant is charged with murder of a Jew, a crime different than murdering a Catholic.
The notion of crimes against humanity, Arendt insisted, captured the unprecedented quality of Nazi atrocity as a ‘crime against the human status’ and as an ‘attack upon human diversity as such’.6 That Arendt understood the incrimination in a manner different from the jurists at Nuremberg is beside the point. Arendt, after all, was not interested in a timid recapitulation of legal precedent; instead, she sought to push legal discourse toward a more robust conceptual grasp of the meaning and distinctiveness of the crime of mass atrocity.
Still unanswered, however, is why exactly Arendt believed so strongly in the necessity and power of the proper legal idiom. Her argument most emphatically does not insist that framing the proper idiom is a key to rendering legal justice in the conventional sense of handling the accused in a procedurally fair fashion. Arendt never seriously doubts the fairness of Eichmann’s conviction; nor does she call into the doubt, as did many thinkers at the time, the wisdom of sentencing Eichmann to death. Likewise, she never calls into question the fairness of the convictions in the Frankfurt-Auschwitz trial—if anything, she laments the acquittals. Put another way, if judgment framed in wrong or inadequate legal concepts occasions an injustice, it is not an injustice to the accused.
Arendt wants, rather, to insist that the law’s failure to frame and use proper idioms constitutes a failure to do conceptual justice to the distinctive nature of mass, state-sponsored atrocity. What this distinctive nature or essence is, need not in the moment concern us. At times, she identifies it with the bureaucratic nature of a crime which invites the shifting of responsibility to superiors; at others, she speaks of the functional subdivision of tasks that fragments and dilutes a sense of individual blameworthiness; and at others still, she talks about the distinctive dehumanisation visited upon actors in bureaucratic structures embedded in totalitarian regimes.
At first blush, this concern with framing legal concepts adequate to the task of grasping the essence of crimes of atrocity appears to sit uncomfortably with Arendt’s louder, more persistent argument that the criminal trial must not be burdened with doing the work of the historian.7 But the contradiction dissolves on further analysis. For Arendt’s interest is not historical and retrospective.8 Less concerned with framing an accurate representation of the crime as an artifact or as a moment of history, Arendt’s interest is prospective, directed toward grasping the crime of atrocity as a phenomenon that remains present, real and capable of repetition. Arendt makes this argument most explicitly toward the end of Eichmann in Jerusalem: