Trial and error - justice well served in overturn of John Demjanjuk's conviction in Nazi war crimes case in Israel - Editorial

Reviewing documents uncovered since the fall of the Soviet Union, Israel's Supreme Court overturned the conviction of John Demjanjuk, the retired Cleveland autoworker, as Ivan the Terrible, guard at the Treblinka death camp. It transpired that camp guards examined by the Soviets after World War Il had said that the Ivan of Treblinka was a man named Ivan Marchenko. Despite the testimony of Treblinka survivors that Demjanjuk was Ivan, the Israeli court, acknowledging doubt, freed him. But as we went to press, the case was still not concluded: the government had ten days to decide whether to prosecute him for having been a guard at other death camps.

Should Demjanjuk be tried for other offenses which, though less ghastly than the personal sadism of Ivan, would nonetheless make him an accomplice in the Nazi machinery of genocide? Our best judgment in a difficult matter is that he should not. It seems likely that Demjanjuk was an accomplice in such crimes. But the documents that helped secure his deportation from the United States and his initial conviction were flawed, since the Soviets had withheld exculpatory evidence. Moreover, U.S. authorities may have knowingly withheld some evidence from the defense. The initial Israeli trial, which should have been confined to the question of Demjanjuk's identity, was in effect an historical reenactment of the Holocaust, the iniquity of which was not at issue. It is hard to believe that this did not prejudice the case. Given these official errors, the case against Demjanjuk has been tainted. This trial has also shown the risk of relying on eyewitness testimony decades after an event; would the risk be any smaller in a second trial?

Patrick J. Buchanan doubted the evidence all along, and was excoriated as "a defender of Nazi war criminals," when he was in fact a defender of someone charged - falsely - with particular war crimes. It is disingenuous of his critics to argue now that because Demjanjuk may perhaps have committed other crimes, then Mr. Buchanan deserves no credit in the matter. He could not possibly have foreseen all eventualities when he pointed out an apparent injustice. If Dreyfus had proved to be an embezzler, Zola's defense of him against the charge of treason would still have been valid. Mr. Buchanan deserves double credit for persisting, in the teeth of calumny, with his attempt to ensure that justice was done.

All in all, the Israeli Supreme Court deserves congratulations for overturning a conviction on which the government and Israeli public opinion had placed such importance. It seems likely this will be the last great trial resulting from the Holocaust. Its original purpose, in addition to determining the individual guilt or innocence of Demjanjuk, was to remind the world of those horrors. The Supreme Court's decision has given it a new significance: that the rule of law must not be sacrificed to even the most justified popular indignation.

COPYRIGHT 1993 National Review, Inc.
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