John Demjanjuk - Trial in Israel - Israeli Supreme Court Ruling

Israeli Supreme Court Ruling

On 29 July 1993, a five-judge panel of the Israeli Supreme Court overturned the guilty verdict on appeal. Their ruling was based on the written statements of 37 former guards at Treblinka that identified Ivan the Terrible as "Ivan Marchenko." Central to the new evidence was a photograph of Ivan the Terrible and a description that did not match the 1942 appearance of Demjanjuk. The accounts of 21 guards who were tried in the Soviet Union on war crimes gave details that differentiate Demjanjuk from Ivan the Terrible—that his surname was Marchenko. One described Ivan the Terrible as having brown hair, hazel eyes and a large scar down to his neck; Demjanjuk was blond with grayish-blue eyes and no such scar. U.S. officials had originally been aware, without informing Demjanjuk's attorneys, of the testimony of two of these German guards. However the Israeli justices mentioned how Demjanjuk had incorrectly listed his mother's maiden name as "Marchenko" in his 1951 application for U.S. visa. Demjanjuk says he just wrote a common Ukrainian surname after he forgot his mother's real name. The former guards' statements were obtained after World War II by the Soviets, who prosecuted USSR citizens who assisted the Nazis as auxiliary forces during the War. Most of the guards were executed after the war by the Soviets and their written statements were not obtained by Israeli authorities until 1991, when the Soviet Union collapsed. Russian historian Sergei Kudryashov pointed out that if the defence's claims of a KGB plot to frame Demjanjuk had been the case, then the Soviet files that established that Demjanjuk was not "Ivan the Terrible" would have never been made available to the defense. After the collapse of the USSR, the governments of Ukraine and Russia were for a time more open than the previous Soviet regimes. The Soviet KGB was known to use disinformation, in particular through the use of forgeries, to discredit, denigrate, and confuse its enemies, including Ukrainian communities in the West that supported Ukrainian independence.

The Israeli Supreme Court's 405-page ruling included the following: "The main issue of the indictment sheet filed against the appellant was his identification as Ivan the Terrible, an operator of the gas chambers in the extermination camp at Treblinka... By virtue of this gnawing ... we restrained ourselves from convicting the appellant of the horrors of Treblinka. Ivan Demjanjuk has been acquitted by us, because of doubt, of the terrible charges attributed to Ivan the Terrible of Treblinka. This was the proper course for judges who cannot examine the heart and mind, but have only what their eyes see and read." They also added: "The facts proved the appellant's participation in the extermination process. The matter is closed – but not complete, the complete truth is not the prerogative of the human judge."

The court judgment addressed evidence against Demjanjuk that was not included in his indictment. The judges agreed that Demjanjuk most likely served as a Nazi Wachmann (guard) in the Trawniki unit and had been posted at Sobibor extermination camp and two other camps. Evidence to assist this claim included an Identification card from Trawniki bearing Demjanjuk's picture and personal information — allegedly found in the Soviet archives – in addition to German documents that mentioned Wachmann Demjanjuk and mentioned his date and place of birth. The 1949 statement of another Wachmann (Danilchenko), identified a Demjanjuk in passing as someone who allegedly served with him at Sobibor in 1944 (a year after the camp was razed) and noted he had been born the same year as himself (1923). In 1979, Danilchenko made another statement adding that Demjanjuk was allegedly three years older than himself and had been in Sobibor in 1943. None of Danilchenko's allegations were ever subjected to cross-examination. The alleged Trawniki certificate also implied that he served at Sobibor, as did the German orders of March 1943 posting the Trawniki unit to the area.

During the trial end, the prosecution argued that Demjanjuk should be tried for alleged crimes at Sobibor; however, Justice Aharon Barak was not convinced, stating "We know nothing about him at Sobibor."

After Demjanjuk's acquittal, the Israeli Attorney-General decided to release him rather than to pursue charges of committing crimes at Sobibor. Ten petitions against the decision were made to the Supreme Court. On 18 August 1993, the court rejected the petitions on the grounds that (1) the principle of double jeopardy would be infringed, (2) that new charges would be unreasonable given the seriousness of those of which he had been acquitted, (3) that conviction on the new charges would be unlikely, and (4) that Demjanjuk was extradited from the United States specifically to stand trial for offenses attributed to Ivan the Terrible of Treblinka, and not for other alternative charges.

Yoram Sheftel's 1994 book, Sheftel, Yoram (1994) (Hardcover). The Demjanjuk Affair: The Rise and Fall of a Show-Trial (Revised ed.). London: Victor Gollancz. ISBN 0575057955. ISBN 9780575057951, became an immediate best-seller in Israel. In reviewing many issues pertaining to the law, Sheftel revealed serious errors, deliberate fabrications, and "fraud on the court" perpetrated by the US Department of Justice Office of Special Investigations (OSI) lawyers in their prosecution of the Demjanjuk case.

Simon Wiesenthal, an iconic figure in Nazi hunting, first believed Demjanjuk was guilty, but after Demjanjuk's acquittal by the Israeli Supreme Court, said he too would have cleared him given the new evidence.

Demjanjuk was released to return to the United States. In 1993, the Sixth Circuit Court of Appeals ruled that Demjanjuk was a victim of fraud on the court, as United States federal government trial lawyers with the Office of Special Investigations had recklessly failed to disclose evidence, and the extradition order previously granted was rescinded. In a report submitted to the Sixth Circuit prior to the Israeli acquittal, federal judge Thomas A. Wiseman, Jr. concluded that American federal officials had erred in asserting that Demjanjuk was Ivan the Terrible, but that evidence instead pointed to Demjanjuk being a lesser SS agent. After the Court of Appeals remanded the matter to Judge Wiseman, Judge Wiseman dismissed the denaturalization petition proceedings in 1998, effectively restoring Demjanjuk's citizenship. Transcripts of Demjanjuk's 1988 trial, and the character of Demjanjuk himself, appear in Philip Roth's 1993 novel Operation Shylock.