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Why Demjanjuk Will Win By: Alan M. Dershowitz
FrontPageMagazine.com | Tuesday, August 04, 2009

Regardless of the outcome of John Demjanjuk’s trial in Munich, this mass-murder has emerged as the winner.  He will have lived almost 90 years.  He has experienced the love of his multigenerational family.  He is a hero in his hometown and throughout many parts of the world.  He has been called an American Dryfus by Patrick Buchanan and characterized as a victim of Jewish persecution by many neo-Nazi websites.  When he dies, there will be tears of sadness and pride from his children and grandchildren.  In sum he has achieved what he denied his thousands of victims, namely the ability to have descendants and see them live happy and fulfilling lives.

Nor is Demjanjuk alone in having achieved victory.  The vast majority of hands-on Nazi mass murderers have lived guilt free, fulfilling and good lives.  Survivors of the Holocaust have suffered far more trauma, mental illness and feelings of guilt than have the perpetrators.  In this topsy-turvy world of immorality, members of the Germans SS proudly placed their membership in that murderous organization on their resumes, while many victims tried to hide their victimization from family, friends and potential employers.

It is argued by some that the conviction of the guilty is necessary to achieve justice.  But there can never be justice for the Holocaust.  This is not to say that there should be no trial.  But do not expect the outcome to produce anything like justice.

Several years ago, after decades of thinking about the impossibility of securing justice for the perpetrators of the Holocaust, I wrote a novel entitled Just Revenge.  The lead character, a highly moral professor in an American university, saw his entire family murdered before his eyes.  Decades later, he spots his family killer in a neighboring town.  Like Demjanjuk, the killer is old and dying of cancer.  The professor realizes that the only real way to achieve justice is to put the killer of his family through the same experience that he, the victim, went through when he saw his entire family murdered.  Accordingly, he comes up with a carefully designed scenario, which he calls “the Maimonodian solution,” under which he kidnaps the mass murderer and shows him videos of his children and grandchildren being murdered.  Because the professor cannot bring himself to actually murder innocent children of guilty parents, he fakes their death through sophisticated video technology.  The mass murderer dies believing that all of his descendants have been murdered in revenge for his actions.  It’s a neat plot, but it’s entirely fictional, because fiction is the only way to achieve justice regarding so horrendous an act as the Holocaust.  (There has been interest in making Just Revenge into a movie, but that has not yet happened.) 

I attended the first trial of John Demjanjuk in Jerusalem.  I saw him close up.  I met his family members.  I am totally and completely convinced that he is guilty of complicity in the Holocaust.  It is also clear beyond any doubt that he is guilty of perjury.  In order to secure his reversal on appeal, he had to admit that his trial testimony was perjurious.  In Israel, unlike in my country and some others, criminal defendants are not placed on trial for lying in their own defense.  It will be interesting to see whether German prosecutors bring up his previous lies.

I could not defend John Demjanjuk, because his defense would consist of perjured testimony.  He has never sought justice.  He has sought delay, obviscation, and confusion.  It is not the proper role of a lawyer to put on a perjured defense. 

There is one other disturbing element in Germany’s understandable efforts to secure a conviction against a Ukrainian participant in the German Holocaust.  Germany has not done a good enough job in prosecuting German participants in the Holocaust.  Many of the central figures were either acquitted or had their sentences commuted after serving a relatively brief sentence.  Most were never tried.  Now there are novels and movies suggesting that the perpetrators of the Holocaust were primarily ignorant, even illiterate stooges.  This all grows out of Hannah Arendt’s misguided conception that the perpetrators of the Holocaust were primarily banal men such as Adolph Eichmann. Nothing could be further from the truth.  The Holocaust could never have occurred without the complicity of Arendt’s friend and mentor, Martin Heidegger, the least banal of men, and other brilliant intellectuals who remained silent in the face of the world’s worst evil.  

It is easy to blame the Holocaust on the John Demjanjuk’s of the world—ignorant Ukrainians who willingly murdered Jews who for centuries they were taught to hate by their church leaders.  The real villains of the Holocaust will never be brought to trial in a court of law.  Perhaps after more than 60 years, they can finally be brought to trial in the court of history, which renders ultimate justice in such matters.  I have my doubts whether even posthumous historical justice will ever be achieved, because so much of the evidence was buried with the victims, and because so much of the world is too busy committing present injustices to care enough about the greatest past injustice.  

Alan M. Dershowitz is a professor of law at Harvard. He is the author of many books, including, most recently, “The Case Against Israel’s Enemies.”

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