April 15, 2009— -- John Demjanjuk is not an isolated case. German investigators have set their sights on other presumed Nazi war criminals, raising the question of how the law should deal with the aged accessories of the Holocaust.
When he had completed the job, SS Colonel Karl Jäger, filled with pride, wrote in his report to his superiors: "Today, I am proud to report that the objective of solving the Jewish problem for Lithuania has been achieved by Task Force 3. There are no longer any Jews in Lithuania ..."
It was Dec. 1, 1941, and German troops had occupied Lithuania, which was part of the Soviet Union, since the summer. According to Colonel Jäger's meticulous account, his subordinates had killed exactly 47,326 men, 55,556 women and 34,464 children.
But Jäger did not claim all the credit for himself and the 120 men he commanded. He was only able to achieve his goal, the ardent Hitler supporter wrote, because one of his subordinates had managed to "secure the cooperation of the Lithuanian partisans."
The "partisans" Jäger referred to were anti-communist militia units that had once fought against the Soviet occupation and had now become the willing helpers of their new, German masters. One such incident of voluntary collaboration took place on August 15 and 16, 1941, in Rokiskis, a town in northeastern Lithuania, where 80 Lithuanians rounded up Jews, brought them to an execution site and helped lock up the victims. Twenty of the Lithuanian volunteers joined Jäger's men in shooting them dead.
Rokiskis was only one of many such places. The Holocaust was a crime ordered and committed by Germans, but without the help of Lithuanians, Latvians, Ukrainians, ethnic Germans living in Eastern Europe (known as "Volksdeutsche") and other Eastern Europeans, the death toll would not have been as high. Historians estimate the number of non-German "killing workers" (a term coined by German writer Ralph Giordano) at about 200,000. There is probably no other group of criminals that has proven more difficult to prosecute than the Nazis' non-German helpers and accomplices. Until today, that is.
Names rarely appear in archives, and many of the murderers managed to disappear in the confusion of postwar Europe or emigrated abroad. And because they were at the end of the chain of command, they were able to argue more credibly than many former members of the SS that they had no other choice, at least until someone could prove them wrong. Not all non-Germans participated in the Holocaust voluntarily the way Jäger's "partisans" did. Some in the Wehrmacht's POW camps signed up to work for the SS simply because they would otherwise have faced death by starvation.
Arrest Warrant For John ("Ivan") Demjanjuk
Under these circumstances, it comes as no surprise that it has taken German prosecutors so long to turn their attention to these suspects. In mid-March, a court in Munich issued a warrant for the arrest of John ("Ivan") Demjanjuk, an 89-year-old Ukrainian-American living in Cleveland, Ohio, who is accused of being an accessory to at least 29,000 murders. Demjanjuk is believed to have worked as a guard at the Sobibor extermination camp. A US court temporarily blocked Demjanjuk's deportation, arguing that he is too frail to travel and stand trial in Germany. But German authorities expect him to be flown to Germany shortly after a US immigration appeals board ruled that he could be deported.
The Central Office for the Prosecution of National Socialist Crimes (ZSTL) in Ludwigsburg, near Stuttgart, already has its sights set on four other men who may have committed murder or been accessories to murder on behalf of the Germans, and who, like Demjanjuk, subsequently emigrated to the United States.
A preliminary investigation is now under way against Ivan Kalymon, 87, who lives in Michigan. Kalymon once worked for the Germans in Lemberg, now Lviv, Ukraine, as a member of the Ukrainian Auxiliary Police. In August 1942, he wrote a short-handwritten note to his superiors to report on a mission. The document reads: "I employed my weapon in the line of duty during the 'Jewish Action' on 8/14/1942, at 7 p.m., using four rounds of ammunition, wounding one person and killing another."
It is hard to imagine that this would not suffice as evidence for issuing a German arrest warrant. Kalymon's appeal against the revocation of his US citizenship was denied last fall, and the Americans would be able to place him on a flight to Germany immediately. In the other three cases, German authorities are still at the start of their investigations.
Johann Breyer, 83, was born in Slovakia and lives in Philadelphia today. The son of a Volksdeutsche man and an American woman has admitted that he worked as a guard at the Buchenwald and Auschwitz concentration camps.
A few weeks ago, the Americans deported Josias Kumpf, now 83, to Austria, from where he had emigrated to the United States. Kumpf was present when, in November 1943, the SS shot about 8,000 Jewish inmates in the space of a few days at the Trawniki concentration camp near the southeastern Polish city of Lublin. Kumpf claims, however, that his job was merely to search for survivors in the corpse pits, and that others were responsible for the murders.
Lithuanian Algimantas Dailide, 87, already lives within the jurisdiction of German courts, namely in Kirchberg, a town in the eastern state of Saxony. During World War II, Dailide, as a member of the Lithuanian secret police, handed over Jews who had attempted to escape from the Vilnius ghetto to the Nazis, and they were subsequently murdered. At the end of the war, Dailide went into hiding in Germany, where he married a woman from the eastern state of Thuringia. In 1950, the couple emigrated to the United States and, like Demjanjuk, settled in Cleveland.
In 2001, faced with the threat of deportation from the United States, Dailide went to Europe voluntarily. A Lithuanian court sentenced him to five years in prison, but suspended his sentence due to his supposedly poor health. Now the Ludwigsburg prosecutors are examine whether they have a case against Dailide.
Failures of the German Judiciary
US authorities consistently limit their actions to revoking the US citizenship of suspected Nazi war criminals and then deporting them to European countries. The legal hurdles for taking these steps are relatively low: All it takes is proof that a suspected war criminal lied about his past upon immigration to the United States.
The Americans have never put any suspected Nazi war criminals on trial, even though the Nazis' victims included American Jews who lived in Europe or happened to be there at the time. Otherwise, US courts could have faced a large number of cases. Historians and legal experts estimate that up to 10,000 Nazi collaborators emigrated to the United States during the chaos of the first few postwar years.
The Americans are not the only ones to have shown little interest in bringing Hitler's helpers to trial. There has also been a lack of commitment on the part of Europeans. For instance, the United States would have extradited suspected concentration camp guard Demjanjuk to Ukraine or Poland long ago if those countries had shown an interest in prosecuting him.
The failures of the German judiciary have been the most grievous, however. Even as German investigators are now focusing their attention on the Nazis' foreign henchmen, German accessories to murder were more or less allowed to escape punishment for years. Since the end of the war, German courts have investigated more than 100,000 cases, but only 6,500 of the accused were ever sentenced. "While senior government officials, officers and commanders enjoyed their retirements in peace," says Christiaan F. Rüter, an Amsterdam criminal law professor, "this old man is now expected to pay for everything." Rüter is referring to Demjanjuk.
Both the planners and the henchmen have benefited from an idiosyncratic stance taken by German lawmakers: that it must be established that those involved were motivated by a special desire to commit murder or played a particularly important role at the scene of a crime.
In 1968, the German parliament, the Bundestag, passed a hidden amendment to the law. The decisive passage appeared in the "Introductory Law to the Law on Administrative Offences." It read: "In the absence of personal characteristics, conditions or circumstances establishing the culpability of the offender, the offender's sentence shall be mitigated." In other words, those who committed murder simply because they were following orders -- as was the case with the overwhelming majority of the accessories -- usually got off lightly.
In the first year after the new clause came into effect, proceedings against at least 300 defendants were dropped. These defendants included, for example, planners who had worked at the Reich Main Security Office (RSHA), the agency that essentially organized the murder of Jews. A major case against RSHA senior officials failed, and most of their crimes suddenly came under the statute of limitations.
Erich Nellmann, the Stuttgart chief public prosecutor at the time, fittingly described the problem more than 50 years ago: "Some had the misfortune of being reported to the authorities, while others did not. The sentenced offender knows that many other offenders are living scot-free. He and others perceive this disparity as an injustice." In retrospect, prosecutors have to concede that mistakes were made.
In this sense, it seems almost coincidental that the criminal prosecution of Nazi war criminals is now entering its final round with cases against the smallest links in the chain, namely people like Demjanjuk. "In fact, it's embarrassing," says Rüter.
Reported by GEORG BÖNISCH, JAN FRIEDMANN, CORDULA MEYER, KLAUS WIEGREFE
Translated from the German by Christopher Sultan