Category Archives: Israeli History

Searching for Kafka’s Soul in the Courts of Israel

 

Benjamin Balint, Kafka’s Last Trial:

The Case of a Literary Legacy (W.W. Norton & Co.)

          Franz Kafka is today known for his terrifying vision of faceless bureaucracies and irrational state power.  Some see in Kafka’s most famous works an eerie foreshadow of the totalitarian horrors of Nazi Germany and Soviet Russia.  The English poet W.H. Auden once remarked that Kafka was to his age what Dante, Shakespeare and Goethe had been to theirs.  But when he died of tuberculosis in 1924, just short of his 41st birthday, Kafka, German-speaking, Jewish and Czech, was a writer of no particular acclaim.  He had yet to complete a single novel and the little he had published had failed to attract significant attention. 

           As he approached death, Kafka instructed Max Brod, his long time friend and literary companion, to burn his remaining papers, including manuscripts, diaries and letters.  This was typical of Kafka, who was plagued with deep-rooted anxiety and feelings of inadequacy throughout his life, feelings that animated his unfinished novels and other works.  Fortunately, Brod ignored Kafka’s directive and not only preserved but also edited significantly the Kafka papers.  Many went on to be published, including The Trial and The Castle, now considered among the 20th century’s most consequential novels.

          Brod, also German-speaking, Jewish and Czech, fled his native Prague with his wife Elsa in 1939 while carrying the Kafka papers in a suitcase, barely a step ahead of the Nazi annexation of Czechoslovakia.  He wound up in Tel Aviv, where he became a close friend of Ilse Hoffe, another German-speaking Jew from Prague, along with her husband Otto and their two young daughters, Eva and Ruth.  Ilse, who at Brod’s suggestion changed her first name to the Hebrew Esther, became Brod’s personal secretary, albeit without a regular salary.  Rather, Brod, during his lifetime, as a form of compensation bequeathed the Kafka papers still in his possession to Esther as a gift.  After Brod’s death in 1968, Esther in turn bequeathed the papers to her two daughters, Eva and Ruth, with the proviso that during her lifetime, she retained the right to publish and sell the papers. 

          When Esther died in 2007 at age 101, Eva and Ruth sought to probate their mother’s will.  But before the court acted on what Eva and Ruth thought would be a routine request, the Israeli National Library in Jerusalem intervened to assert a proprietary interest in the Kafka papers. To further complicate the proceeding, the Literature Archive in Marbach, the German counterpart to the Israeli National Library, also intervened. Each contended that it was the appropriate repository for the papers.  The case continued in Tel Aviv Family Court for five years, after which it progressed through higher levels within the Israeli judicial systems, up to the Israeli Supreme Court.  Not until 2016 did the case become final.

            At the heart of these proceedings was a single, perplexing question: to whom did the Kafka papers belong?  From one angle, the question was narrowly legal, involving Brod’s intent in bequeathing the Kafka papers to Esther as a gift in her lifetime; Esther’s intent in making a subsequent lifetime conveyance to her daughters; and the legal effects of both conveyances (Kafka’s intent was both clear and irrelevant).  These issues will be attractive to present and former law students, familiar with the exercise of teasing the intent of dead people out of complex and ambiguous factual situations.  But the courts also approached the question from a broader angle, one likely to be more engrossing to more readers: with the presence in the litigation of the Israeli National Library and the German Marbach Archive, the courts found themselves with little choice but to embark upon a search for Kafka’s literary soul and determine whether that soul might be considered either Israeli or German.

           Neither the Israeli National Library nor the Marbach Academy presented an overly compelling case that it was the appropriate repository for the Kafka papers.  Kafka never set foot in Palestine, the predecessor to Israel, and Judaism played no evident role in his writings.  Nor was Kafka a German national.  He only wrote in that language, like an American or Australian writing in English, a Belgian or Québécois in French, or a Peruvian or Bolivian in Spanish, but with the hardly insignificant qualification that Germany had both invaded and annexed his native country and was responsible for the deaths of his three sisters and other family members in the Holocaust.

           The fate of  the Kafka papers in the Israeli courts makes for a story that their  deceased author would likely have found suitable for a novel – a story for which the adjective “Kafkaesque” seems unavoidable (“having a nightmarishly complex, bizarre, or illogical quality,” according to Merriam-Webster, “often applied to bizarre and impersonal administrative situations where the individual feels powerless to understand or control what is happening”).  Benjamin Balint’s aptly titled Kafka’s Last Trial: The Case of a Literary Legacy tells that story with aplomb, skillfully moving back and forth between the 21st century litigation and its 20th century predicates: Kafka’s own life, his relationship with Brod up to his death, Brod’s efforts to keep the Kafka flame alive before his flight from Prague, and his new life in Tel Aviv with Esther and the Hoffe family. 

          The story involves a three-person chain of custody for the Kafka manuscripts. After having “so vitally linked Brod to his former heyday in Prague,” by the 1950s the manuscripts “began to link Brod with Esther – the currency of their relationship” (p.195).  Then, when Brod, who had been like a second father to Esther’s daughters Eva and Ruth, died in 1968, the manuscripts became a part of the relationship between Esther and her two daughters.  Ruth died during the litigation, in 2012, making Balint’s story as much about Brod, Esther and Eva as it is about Kafka.  But the competing claims of the Israeli National Library and he Marbach Archive highlighted the fraught relationship between Germany and Israel in the aftermath of World War II.  

           These competing claims, Balint writes, “threw into stark relief the very different ways Israel and Germany remain freighted by their ruptured pasts and by the noble lies on which their healing depended” (p.223-24).  Both brought to the judicial proceedings a “concern about their respective national pasts. . . [B]oth sought to use Kafka as a trophy to honor those pasts, as though the writer was an instrument of national prestige” (p.8).  The litigation offered a lesson in “how Germany’s claim on a writer whose family was decimated in the Holocaust is entangled with the country’s postwar attempt to overcome its shameful past,” while reawakening in Israel a long-standing debate about Kafka’s “ambivalence toward Judaism and the prospects of a Jewish state – and about Israel’s ambivalence toward Kafka and toward Diaspora culture” (p.223-24).

* * *

               Max Brod, born in 1884 in Prague, met Kafka when both were students at Charles University in Prague.  Brod, Balint observes, was as exuberant and outgoing as Kafka was inward looking.  With his “joie de vivre, alive with surplus energies,” Brod “radiated a verve, vitality and communion with human life lacking in Kafka” (p.20).  Of a “sunnier temperament, less divided against himself,” Brod appeared  “free of the kind of self-doubt that accompanied Kafka’s pitiless self-scrutiny” (p.20).  Whereas Kafka seemed to care little about worldly success, Brod was “consumed with his own ambition” (p.20).

         During Kafka’s lifetime, Brod was by far the more successful writer, producing poetry, treatises, 20 novels and a variety of “polemical broadsides” (p.25).  Unlike Kafka, Brod was a staunch Zionist whose novels were “suffused with Jews and Jewishness” (p.86).  Early in their relationship, Brod perceived Kafka’s potential literary genius and “obsessively collected anything that Kafka put his hand to.  Kafka, in contrast felt the impulse to shed everything” (p.25-27).  Acknowledging Kafka’s incapacity for self-promotion, Brod “came to serve as his friend’s advocate, herald, and literary agent” (p.28).

         Rather than obey Kafka’s directive that all his papers be burned, Brod in the decade following Kafka’s death in 1924 dedicated himself with a “singular passion to saving the manuscripts and rescuing Kafka from oblivion,” transforming himself into the “greatest posthumous editor of the twentieth century” (p.132).  Brod twice rescued Kafka’s legacy: “first from physical destruction, and then from obscurity” (p.133). The Kafka we know today is almost entirely the creation of Brod.  Without Brod, “there would be no Kafka,” Balint writes. “We cannot help but hear Kafka’s voice through Brod” (p.133).  But without Kafka, he emphasizes, Brod, the “curator of Kafka’s posthumous fame,” would have “long since faded from public memory” (p.135).  

           Not long after he arrived in Tel Aviv, Brod met the Hoffe family, Otto and Ilse (Esther) and their two daughters, Eva and Ruth.  In the early 1940s, Otto and Esther had taken their daughters out of Prague “on a holiday,” as they told them, never to return.  After a stop in Vichy France, the family of four ended up in Tel Aviv.  Brod was then grieving from his wife’s recent death, and became close to the Hoffe couple and their children.  All felt like outsiders in Tel Aviv.  Brod at one point suggested that Esther help him inventory the papers he had carried from Prague in his suitcase.  Esther went on to work regularly at Brod’s apartment, becoming, in Brod’s words, his “creative partner,” “stringent critic,” and “rescuing angel” (p.195). 

* * *

             On two separate occasions, in 1947 and 1952, Brod noted in writing that he had gifted to Esther “all the Kafka manuscripts and letters in my possession” (p.195).  He added in the 1952 note that he and Esther had “jointly” deposited this material in a safe in 1948.  Esther acknowledged the gift by a writing in the margins of the 1952 note.  Brod also executed two wills, in 1948 and 1961, both of which named Esther as his sole heir and executor, bequeathing to her all his possessions. In the 1961 instrument, Brod instructed that after her death his literary estate – not the Kafka papers — should be deposited in the Hebrew University of Jerusalem, the municipal public library of Tel Aviv, or another public archive in Israel or abroad, with Esther to determine which institution and under what conditions.  Neither instrument mentioned the Kafka papers, indicating that Brod did not consider them part of his estate, having already been gifted to Esther.

          In April 1969, a half year after Brod’s death, Tel Aviv District Court granted probate to Brod’s last will and appointed Esther as executor of his estate.  In 1970, Esther in turn formally bequeathed the Kafka manuscripts to daughters Eva and Ruth as gifts, in equal portions, but retained substantial rights over the papers, including the right to dispose of them as she, Esther, saw fit.  So the matter stood until 1973, when the State of Israel, concerned that Esther might seek to sell Kafka’s manuscripts abroad, sued Esther for possession of the Kafka papers.  

          Under applicable Israeli law, the State’s Archivist was empowered to prevent the removal from Israel of privately owned records that are of “national” value and which, “irrespective of where they are found, are deemed relevant to the study of the nation’s history, its people, the state, and society” (p.200).  The court rejected Israel’s claim, ruling in January 1974 that Brod’s last will “allows Mrs. Hoffe to do with his estate as she pleases during her lifetime” (p.10).   Esther then auctioned off some Kafka letters and postcards in 1974.  In 1988, she put the 316 page original of Kafka’s 1914 draft of The Trial up for auction at Sotheby’s in London.  It sold for £1,000,000, at the time the highest price ever paid for a modern manuscript.   The sale precipitated no reaction from Israeli state authorities.

          After Esther’s death at age 101 in 2007, Eva and Ruth went to Tel Aviv Family Court to  seek probate of their mother’s will, which had been executed in 1988.  The will noted that Esther had already given the Kafka manuscripts to her daughters as gifts.  Anticipating a routine proceeding, Eva was stunned when a lawyer for the National Library appeared, contending that Brod’s will had been misconstrued in the 1974 decision (the Library challenged the 1974 ruling under an article of the Israeli succession code that allows an interested party to ask for the amendment of a probate order on the basis of facts that have come to light since the original order, even if the party did not participate in the original proceeding).  The Library argued that Brod had left the papers to Esther as an executor, not as a beneficiary.  Brod intended Esther to have them only in his lifetime; when he died, he intended that they go to a public archive.  The manuscripts were therefore never Esther’s to give, and she could not now pass them on to her daughters — essentially a repeat of the arguments the court had rejected a third of a century earlier.  Esther had betrayed Brod’s will, the lawyer contended, “much as the Brod had betrayed Kafka’s” (p.34).

* * *

         The German Literature Archive in Marbach, the world’s largest archive of modern German literature, is a state-of-the-art facility for cataloging and preserving papers.  It houses the papers of several writers who had been persecuted by the Nazis.  It entered the litigation when it was negotiating with Esther to buy at least some of the papers, hiring a top Israeli lawyer who contended that the proceedings were a pretext for an Israeli seizure of private property.  If Israel were acting in good faith, he argued, it would negotiate with Eva rather than try to expropriate the papers through litigation. 

            In support of its claim to be the natural home of Kafka’s papers, the Marbach Archive reminded the court that German literature, not the Jewish tradition, “indisputably constituted Kafka’s cultural canon” (p.156).  Even Kafka’s austere writing style was “inseparable from – and made possible by – the German language” (p.157).  Kafka wrote in what Balint terms a “merciless German that pares away superfluity and slack” (p.157; Brod once described Kafka’s prose as “fire” which “leaves no soot behind” (p.157)).  Germany’s claim to the papers, moreover, was an outgrowth of the critical role which literature had played in forging German cultural identity.  Long before the birth of the unified German state in 1871, German language and literature acted “not just as a vehicle of communication but as a crucible of national cohesion.”  To a degree unthinkable elsewhere, “literature has played – and continues to play – a consolidating role in helping Germans come to terms with their Volkgeist”  (p.160).

         The Israeli National Library’s attorney argued that there was “something obscene in the argument that the papers ‘belong’ in Germany, the country of the genocidal perpetrators, the country that gave unprecedented mechanized form to man’s inhumanity to man” (p.79).  But the library still had to support its somewhat amorphous contention that Kafka was a “touchstone of ‘Jewish culture’” (p.90).  It was able to point to some affinities to Zionism that Kafka had manifested as a young man, and demonstrate that he was not indifferent to Judaism so much as confounded by it.

         Before World War I, Kafka attended Zionist activities in Prague, as well the 11th World Zionist Congress in Vienna in 1913.  He took courses on the Talmud and was able to speak and write in Hebrew.  He once wrote to one of his earliest loves, Felice Bauer (a distant cousin of Brod) about the “dark complexity of Judaism, which contains so many impenetrable mysteries” (p.62).  Among the items that Brod found in Kafka’s papers after his death was an unsent 100-page letter to his father on how Judaism, rather than bringing the two together, had actually driven them further apart.  While we “might have found one another in Judaism,” Kafka was prepared to tell his father, the flimsy vestiges passed along to him were an “insufficient scrap. . . a mere nothing, a joke . . . It all dribbled away while you were passing it on” (p.93).

           But several factors undermined Israel’s cultural claim on Kafka.  In all of Kafka’s fiction, there is “no direct reference to Judaism.  One searches in vain for Jews, or Jewish patterns of speech, in Kafka’s placeless fiction” (p.86).  There was never a Kafka “cult” in Israel comparable to that in Germany, France or the United States.  In marked contrast to Germany, there are no streets in Israel named after Kafka. Israel was one of last countries to translate Kafka into its national language. To this day, there is no Hebrew edition of Kafka’s complete works.  For many years, there were no German language or literature courses at the Hebrew University in Jerusalem.  Even today, Germany funds these departments.   

            While Kafka’s cool reception in the Jewish state might be explained as a generalized resistance toward German language and literature, associated with Nazi barbarity, the better view for Balint lies in a widespread aversion to Diaspora culture in Israel.  The underpinnings of Kafka’s work — humiliation and powerlessness, anomie and alienation, debilitating guilt and self-condemnation — were the “very pre-occupations Israel’s founding generation sought to overcome” (p.112).  Balint surmises that Kafka exemplified to Israelis the “political impotence and passivity – the pessimism that flows from a sense of one’s powerlessness – that Zionists so vehemently rejected” (p.110-11).

* * *

            It was not until 2012, a half year after Eva’s sister Ruth died, that the Tel Aviv Family Court issued a 59 page opinion, which began by noting that a “simple request filed by the plaintiffs, the daughters of the late Mrs. Esther Hoffe, to execute her will” had “opened a portal onto the lives, desires, frustrations – indeed the souls – of two of the twentieth century’s great sprits” (p.74).  The court’s decision was appealed to the Tel Aviv District Court, where it remained until June 2015.  The Israeli Supreme Court then heard the case and rendered its decision in 2016.

          Among its many ironies, the litigation had exposed a proprietary attitude over the legacy of a writer whom Balint describes as “bound up in the refusal to belong to a fixed abode”  — a writer who “untethered both himself and his writing from the comforting anchors of national or religious belonging” (p. 226-27).  Balint concludes his cogent analysis by noting that although the Israeli judges had reached a verdict in this irony-riddled case, the “symbolic trial over Kafka’s legacy has yet to adjourn” (p.219). 

Thomas H. Peebles

La Châtaigneraie, France

April 27, 2019

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Filed under German History, Israeli History, Literature

Trial By History

 

 

 

Lawrence Douglas, The Right Wrong Man:

John Demjanjuk and the Last Great Nazi War Crimes Trial 

          Among the cases seeking to bring to justice Nazi war criminals and those who abetted their criminality, that of Ivan Demjanjuk was far and away the most protracted, and perhaps the most confounding as well.  From 1976, up to his death in 2012, a few months short of his 92nd birthday, Demjanjuk was the subject of investigations and legal proceedings, including two lengthy trials, involving his wartime activities after becoming a Nazi prisoner of war. Born in the Ukraine in 1920, Demjanjuk was conscripted into the Red Army in 1941, injured in battle, and taken prisoner by the Nazis in 1942. After the war, he immigrated to the United States, where he settled in Cleveland and worked in a Ford automobile plant, changing his name to John and becoming a US citizen in 1958.

        Demjanjuk’s unexceptional and unobjectionable American immigrant life was disrupted in 1976 when several survivors of the infamous Treblinka prison camp in Eastern Poland identified him as Ivan the Terrible, a notoriously brutal Ukrainian prison guard at Treblinka. In a trial in Jerusalem that began in 1987, an Israeli court found that Demjanjuk was in fact Treblinka’s Ivan and sentenced him to death. But the trial, which began as the most significant Israeli prosecution of a Nazi war criminal since that of Adolph Eichmann in 1961, finished as one of modern history’s most notorious cases of misidentification. In 1993, the Israeli Supreme Court found, based on newly discovered evidence, that Demjanjuk had not been at Treblinka. Rather, the new evidence established that Demjanjuk had served at four other Nazi camps, including 5½ months in 1943 as a prison guard at Sobibor, a camp in Poland, at a time when nearly 30,000 Jews were killed.  In 2009, Demjanjuk went on trial in Munich for crimes committed at Sobibor. The Munich trial court found Demjanjuk guilty in 2011. With an appeal of the trial court’s verdict pending, Demjanjuk died ten months later, in 2012.

        The driving force behind both trials was the Office of Special Investigations (“OSI”), a unit within the Criminal Division of the United States Department of Justice. OSI initiated denaturalization and deportation proceedings (“D & D”) against naturalized Americans suspected of Nazi atrocities, usually on the basis of having provided misleading or incomplete information for entry into the United States (denaturalization and deportation are separate procedures in the United States, before different tribunals and with different legal standards; because no legislation criminalized Nazi atrocities committed during World War II, the ex post facto clause of the U.S. Constitution was considered a bar to post-war prosecutions of such acts in the United States). OSI had just come into existence when it initiated the D & D proceedings against Demjanjuk in 1981 that led to his trial in Israel, and its institutional inexperience contributed to the Israeli court’s misidentification of Demjanjuk as Ivan the Terrible. Twenty years later, in 2001, OSI initiated a second round of D & D proceedings against Demjanjuk for crimes committed at Sobibor.  By this time, OSI had added a handful of professional historians to its staff of lawyers (during my career at the US Department of Justice, I had the opportunity to work with several OSI lawyers and historians).

             In his thought-provoking work, The Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes Trial, Lawrence Douglas, a professor of Law, Jurisprudence and Social Thought at Amherst College, aims to sort out and make sense of Demjanjuk’s 35-year legal odyssey, United States-Israel-United States-Germany.  Douglas argues that the expertise of OSI historians was the key to the successful 2011 verdict in Munich, and that the Munich proceedings marked a critical transformation within the German legal system. Although 21st century Germany was otherwise a model of responsible atonement for the still unfathomable crimes committed in the Nazi era, its hidebound legal system had up to that point amassed what Douglas terms a “pitifully thin record” (p.11) in bringing Nazi perpetrators to the bar of justice.  But through a “trial by history,” in which the evidence came from “dusty archives rather than the lived memory of survivors” (p.194), the Munich proceedings demonstrated that German courts could self-correct and learn from past missteps.

         The trial in Munich comprises roughly the second half of Douglas’ book. Douglas traveled to Munich to observe the proceedings, and he provides interesting and valuable sketches of the judges, prosecutors and defense attorneys, along with detail about how German criminal law and procedure adapted to meet the challenges in Demjanjuk’s case.  The man on trial in Munich was a minor cog in the wheel of the Nazi war machine, in many ways the polar opposite of Eichmann. No evidence presented in Munich tied Demjanjuk to specific killings during his service at Sobibor. No evidence demonstrated that Demjanjuk, unlike Ivan the Terrible at Treblinka, had engaged in cruel acts during his Sobibor service. There was not even any evidence that Demjanjuk was a Nazi sympathizer. Yet, based on historical evidence, the Munich court concluded that Demjanjuk had served as an accessory to murder at Sobibor.  The camp’s only purpose was extermination of its population, and its guards contributed to that that purpose. As Douglas emphatically asserts, all Sobibor guards necessarily served as accessories to murder because “that was their job” (p.220).

* * *

            Created in 1979, OSI “represented a critical step toward mastering the legal problems posed by the Nazi next door” (p.10; a reference to Eric Lichtblau’s incisive The Nazi Next Door, reviewed here in October 2015).   But OSI commenced proceedings to denaturalize Demjanjuk before it was sufficiently equipped to handle the task.  In 1993, after Demjanjuk’s acquittal in Jerusalem as Ivan the Terrible, the United States Court of Appeals for the Sixth Circuit severely reproached OSI for its handling of the proceedings that led to Demjanjuk’s extradition to Israel.  The court found that OSI had withheld exculpatory identification evidence, with one judge suggesting that in seeking to extradite Demjanjuk OSI had succumbed to pressure from Jewish advocacy groups .

            The Sixth Circuit’s ruling was several years in the future when Demjanjuk’s trial began in Jerusalem in February 1987, more than a quarter of a century after completion of the Eichmann trial (the Jerusalem proceeding against Eichmann was the subject of Deborah Lipstatadt’s engrossing analysis, The Eichmann Trial, reviewed here in October 2013). The Holocaust survivors who testified at the Eichmann trial had had little or no direct dealing with the defendant. Their purpose was didactic: providing a comprehensive narrative history of the Holocaust from the survivors’ perspective.   The Treblinka survivors who testified at Demjanjuk’s trial a quarter century later older had a more conventional purpose: identification of a perpetrator of criminal acts.

            Five witnesses, including four Treblinka survivors and a guard at the camp, identified Demjanjuk as Ivan the Terrible.   Eliahu Rosenberg, who had previously testified at the Eichmann trial, provided a moment of high drama when he approached Demjanjuk, asked him to remove his glasses, looked him in the eyes and declared in Yiddish, the language of the lost communities in Poland, “This is Ivan. I say unhesitatingly and without the slightest doubt. This is Ivan from the [Treblinka] gas chambers. . . I saw his eyes. I saw those murderous eyes” (p.51). The Israeli court also allowed the Treblinka survivors to describe their encounters with Ivan the Terrible as part of a “larger narrative of surviving Treblinka and the Holocaust” (p.81). The court seemed influenced by the legacy of the Eichmann trial; it acted, Douglas emphasizes, “as if the freedom to tell their story was owed to the survivors” (p.81-82).

            The case against Demjanjuk also rested upon an identification card issued at Trawniki, an SS facility in Poland which prepared specially recruited Soviet POWs to work as accessories, where they provided the SS with “crucial assistance in the extermination of Poland’s Jews, including serving as death camp guards” (p.52). The card contained a photo that unmistakably was of the youthful Demjanjuk (this photo adorns the book’s cover), and accurately reported his date of birth, birthplace, father’s name and identifying features. Trawniki ID 1393 listed Demjanjuk’s service at Sobibor, but not Treblinka. That, Israeli prosecutors explained, was because Sobibor had been his initial assignment at the time of issuance of card.

          Demjanjuk’s defense was that that he had not served at Treblinka, but his testimony was so riddled with holes and contradictions that the three experienced judges of the court – the fact finders in the proceeding; there was no jury – accepted in full the survivors’ testimony and sentenced Demjanjuk to death in 1988.  The death sentence triggered an automatic appeal to the five-judge Israeli Supreme Court (Eichmann was the only other defendant ever sentenced to death by an Israeli court). The appellate hearing did not take place until 1990, and benefitted from a trove of documents released by the Soviet Union during its period of glasnost (openness) prior to its collapse in 1991.

      The Soviet documents contained a “rather complete” (p.94) picture of Demjanjuk’s wartime service, confirming his work as a camp guard at Sobibor and showing that he had also served at three other camps, Okzawm, Majdanek and Flossenberg, but with no mention of service at Treblinka.  Moreover, the Soviet documentation pointed inescapably to another man, Ivan Marchenko, as Treblinka’s Ivan the Terrible. In 1993, six years after the Jerusalem trial had begun, the Israeli Supreme Court issued a 400-page opinion in which it vacated the conviction. Although the court could have remanded the case for consideration of Demjanjuk’s service at other camps, it pointedly refused to do so. Restarting proceedings “does not seem to us reasonable” (p.110), the court concluded.  OSI, however, took a different view.

* * *

            Although Demjanjuk’s US citizenship was restored in 1998, OSI determined that neither his advancing age – he was then nearly 80 – nor his partial exoneration in Jerusalem after protracted proceedings was sufficient to allow him to escape being called to account for his service at Sobibor. Notwithstanding the rebuke from the federal court of appeals for its handling of the initial D & D proceedings, OSI in 2001 instituted another round of proceedings against Demjanjuk, 20 years after the first round. Everyone at OSI, Douglas writes, “recognized the hazards in seeking to denaturalize Demjanjuk a second time. The Demjanjuk disaster continued to cast a long shadow over the unit, marring its otherwise impressive record of success” (p.126). By this time, however, OSI had assembled a team of professional historians who had “redefined our historical understanding of the SS’s process of recruiting and training the auxiliaries who crucially assisted in genocide” (p.126). The work of the OSI historians proved pivotal in the second round of D & D proceedings, which terminated in 2008 with a ruling that Demjanjuk be removed from the United States; and pivotal in persuading a reluctant Germany to request that Demjanjuk be extradited to stand trial in Munich.

            The German criminal justice system at the time of Demjanjuk’s extradition was inherently cautious and rule bound — perhaps the epitome of what a normal legal system should be in normal times and very close to what the victorious Allies would have hoped for in 1945 as they set out to gradually transfer criminal justice authority to the vanquished country. But, as Douglas shows, that system prior to the Demjanjuk trial was poorly equipped to deal with the enormity of the Nazi crimes committed in the name of the German state. Numerous German legal conceptions constituted obstacles to successful prosecutions of former Nazis and their accomplices.

          After Germany regained its sovereignty after World War II and became responsible for its own criminal justice system, it “tenaciously insisted that Nazi atrocities be treated as ordinary crimes, requiring no special courts, procedures, or law to bring their perpetrators to justice” (p.20). Service in a Nazi camp, by itself, did not constitute a crime under German law.  A guard could be tried as an accessory to murder, but only if his acts could be linked to specific killings. There was also the issue of the voluntariness of one’s service in a Nazi camp. The German doctrine of “putative necessity” allowed a defendant to show that he entertained a reasonable belief that he had no choice but to engage in criminal acts.

            In the Munich trial, the prosecution’s case turned “less on specific evidence of what John Demjanjuk did than on historical evidence about what people in Demjanjuk’s position must have done” (p.218) at Sobibor which, like Treblinka, had been a pure exterminaton facility whose only function was to kill its prison population.  With Demjanjuk’s service at Sobibor established beyond dispute, but without evidence that he had “killed with his own hand” (p.218), the prosecution in Munich presented a “full narrative history of how the camp and its guards functioned . . . [through a] comprehensive historical study of Sobibor and its Trawniki-trained guards” (p.219).

          Historical research developed by OSI historians and presented to the Munich court demonstrated that Trawniki guards “categorically ceased to be POWs once they entered Trawniki” (p.226). They were paid and received regular days off, paid home leave and medical care. They were issued firearms and were provided uniforms. The historical evidence thus demonstrated that the difference between the death-camp inmates and the Trawnikis who guarded them was “stark and unequivocal” (p.226).  Far from being “glorified prisoners,” Trawniki-trained guards were “vital and valued assistants in genocide” (p.228). The historical evidence further showed that all guards at Sobibor were “generalists.” They rotated among different functions, such as guarding the camp’s perimeter and managing a “well-rehearsed process of extermination.” All “facilitated the camp’s function: the mass killings of Jews” (p.220).

         Historical evidence further demolished the “putative necessity” defense, in which the defendant entertained a reasonable belief that he would face the direst consequences if he did not participate in the camp’s activities. An “extraordinary research effort was dedicated to exploring the question of duress, and the results were astonishing: historians failed to uncover so much as a single instance in which a German officer or NCO faced ‘dire punishment’ for opting out of genocide” (p.223).  The historical evidence thus provided the foundation for the Munich court to find Demjanjuk guilty as an accessory to murder. He was sentenced to five years imprisonment but released to a Bavarian nursing home pending appeal. Ten months later, on March 17, 2012, he died. Because his appeal was never heard, his lawyer was able to argue that his conviction had no legal effect and that Demjanjuk had died an innocent man.

           The Munich court’s holding that Demjanjuk had been an accessory to murder underscored the value of years of historical research. As Douglas writes:

Without the painstaking archival work and interpretative labors of the OSI’s historians, the court could never have confidently reached its two crucial findings: that in working as a Trawniki at Sobibor, Demjanjuk had necessarily served as an accessory to murder; and that in choosing to remain in service when others chose not to, he acted voluntarily. This “trial by history” enabled the court to master the prosecutorial problem posed by the auxiliary to genocide who operates invisibly in an exterminatory apparatus (p.255-56).

          In the aftermath of Demjanjuk’s conviction, German prosecutors considered charging as many as 30 still living camp guards. One, Oskar Gröning, a former SS guard at Auschwitz, was convicted in 2015, in Lüneburg, near Hamburg.  Gröning admitted in open court that it was “beyond question that I am morally complicit. . . This moral guilt I acknowledge here, before the victims, with regret and humility” (p.258).  Gröning’s trial “would never have been possible without Demjanjuk’s conviction” (p.258), Douglas indicates. Camp guards such Demjanjuk and Gröning were convicted “not because they committed wanton murders, but because they worked in factories of death” (p.260).

* * *

        Thirty years elapsed between Demjanjuk’s initial D & D proceedings in the United States in 1981 and the trial court’s verdict in Munich in 2011. Douglas acknowledges that the decision to seek to denaturalize Demjanjuk a second time and try him in Munich after the spectacularly botched trial in Jerusalem could be seen as prosecutorial overreach.  But despite these misgivings, Douglas strongly supports the Munich verdict: “not because I believe it was vital to punish Demjanjuk, but because the German court delivered a remarkable and just decision, one which few observers would have predicted from Germany’s long legal struggle with the legacy of Nazi genocide” (p.15).   Notwithstanding all the conceptual obstacles created by a legal system that treated the Holocaust as an “ordinary crime,” German courts in Demjanjuk’s case “managed to comprehend the Holocaust as a crime of atrocity” (p.260).  Demjanjuk’s conviction therefore serves as a reminder, Douglas concludes, that the Holocaust was “not accomplished through the acts of Nazi statesmen, SS henchmen, or vicious sociopaths alone. It was [also] made possible by the thousands of lowly foot soldiers of genocide. Through John Demjanjuk, they were at last brought to account” (p.257).

Thomas H. Peebles

Washington, D.C.

July 10, 2017

 

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