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Commentary: Demjanjuk Deportation a Milestone
No time limits should apply to prosecuting genocide and crimes against humanity
The National Law Journal
June 11, 2009
A central element of the human rights movement is ensuring perpetrators are brought to justice.
The deportation of John Demjanjuk to Germany, to stand trial for Holocaust-era atrocities involving the murder of 29,000 concentration camp inmates, is an important milestone in modern human rights history. After exhaustive and painstaking examination of voluminous material, courts in the United States have found, "by clear, convincing and unequivocal evidence," that Demjanjuk "actively participated" in persecutions at no fewer than four horror camps: Trawnicki, Majdanek, Sobibor and Flossenberg. At Sobibor, which existed for the sole purpose of exterminating human beings, he "contributed to the process by which thousands of Jews were murdered by asphyxiation with carbon monoxide." Moreover, his participation was "willing."
A central component of the human rights movement of the post-World War II era is ensuring that perpetrators are brought to justice; indeed, it is a key index of the success of the system. And sometimes that applies irrespective of the effluxion of time (more than 65 years, in this case) or the age of the perpetrator (Demjanjuk is 89 years old).
The old adage, justice delayed is justice denied, is a good starting point. Applied to defendants, it is a recognition that, in normal circumstances, it is unconscionable to drag out prosecutions and leave defendants waiting in limbo, with all the attendant risks, such as problems of proof due to unavailability of witnesses, staleness of evidence, the failure of memories and so on. The adage is in fact the underpinning to a constitutional guaranty, in this country, of a speedy trial.
JUSTICE FOR THE VICTIMS
But most good rules have room for exceptions, should the circumstances warrant, especially when the application of a rule itself leads to injustice. Justice, it will readily be appreciated, is a fundamental notion that applies not only to defendants. What about victims? What about survivors, relatives and loved ones of victims? And what about history? Surely, they too deserve consideration, as part of the overall equation, in the sense of being entitled to see that the law is applied and that those who are found guilty of having committed crimes are dealt with accordingly.
How much more so is that the case when the crimes concerned are genocide and crimes against humanity, the two most egregious offenses in the international legal lexicon. So heinous are these offenses, and so destructive of the core fabric of international society, that they cannot admit of any limitations period, which would set a deadline beyond which prosecution cannot take place.
It is not at all far-fetched to imagine that, when Adolf Hitler said, in 1939, "Who, after all, speaks today of the annihilation of the Armenians?," he was not simply referring to the fact that the Armenian genocide, of barely two decades earlier, was largely forgotten and unremarked, but also, very significantly, that, despite the fact that 1.5 million to 2 million people were slaughtered, no one was, in any meaningful sense, held responsible.
SENDING A CLEAR MESSAGE
One of the principal rationales behind having orderly trials at Nuremberg, after World War II, was the aim of creating international law precedents and sending loud and clear messages to future would-be tyrants that this was the fate that potentially awaited them, should they choose to go down the same path. Making prosecution of genocide and crimes against humanity subject to time limits is a sure means of undermining that noble intent. An important component of justice, in the case of crimes of such enormity, is that those who commit them not be permitted to rest easy, or sleep tranquilly in their beds, for the rest of their lives.
This is the clear, unmistakable lesson of the Demjanjuk case. The civilized world owes a debt of gratitude to the morally courageous team in the Office of Special Prosecutions in the U.S. Department of Justice, which has conscientiously pursued John Demjanjuk through all legal machinations for more than three decades. The same applies to the prosecutors in Germany who are prepared to put him on trial.
In the world of international human rights, these lawyers are heroes.
Harry Reicher teaches law and the Holocaust and international human rights at the University of Pennsylvania Law School, and is scholar-in-residence at Touro College Jacob D. Fuchsberg Law Center.
