'Ivan' judges swallow hard but acquit: The Demjanjuk case turns its final corner

JERUSALEM - In a historic appeal court ruling, Israeli judges yesterday freed John Demjanjuk, a car worker from Cleveland, Ohio, in the United States, who five years ago was sentenced to hang as Ivan the Terrible, one of the most loathed of Nazi war criminals, writes Sarah Helm.

As assessment began of the judgment's devastating implications both for Israeli justice and for future war crimes trials throughout the world, Mr Demjanjuk, stripped of US citizenship and presented yesterday with a deportation order by Israel, was last night preparing to walk out into a world without a passport and still facing accusations of war crimes.

For although the court upheld the appeal, in the light of new evidence that another man, Ivan Marchenko, was Ivan the Terrible, the judges carefully avoided declaring him 'innocent' emphasising that their decision was taken on the basis of reasonable doubt.

The judges made it clear that, whatever questions now exist about his identity, Mr Demjanjuk had been a Nazi collaborator and assisted as a death camp guard. The court ruled, however, that he could not be convicted on these lesser charges without a new trial.

The drama reached its conclusion at 9am yesterday when the dignified white-haired figure of Meir Shamgar, President of the Israel Supreme Court, began to speak. In the dock Mr Demjanjuk, bulky and simple-faced, adjusted the volume on his earphones, and tilted his head. The court fell silent.

There can have been few more onerous judgements for a court to deliver than the decision in the case of the State of Israel v John Demjanjuk, in which five judges concluded that they must set free a man who, in their view, was guilty of Nazi atrocities, though not of the terrible crimes committed by Ivan the Terrible, a gas chamber operative at Treblinka.

They reached this decision because there was 'reasonable doubt' in the case, and Mr Shamgar hinted at the judges' internal dilemmas in coming to their unanimous decision. He said: 'It is difficult to sit in judgement in a trial pertaining to the Holocaust . . . (Judges) 'are not devoid of feelings . . . Memory horrifies us. But it is incumbent upon us to contain those feelings.'

As Mr Demjanjuk left the court, first to return to jail, 'for his own protection', before being set free, the implications of the case were beginning to reverberate.

Mr Demjanjuk's only words were: 'I want to see my wife, my children my grandchildren. I want to go home.' Mr Demjanjuk may be able to challenge the removal of his US citizenship, in the light of the ruling, but he is now expected to travel to the Ukraine, where he was born. It is the only country so far indicating that it will take him. A senior member of parliament in Ukraine, Bohdan Horyn, said he saw no reason why Mr Demjanjuk should not be allowed to return to Ukraine.

'I think that a man released by Israel's Supreme Court has every grounds to go to any state, including Ukraine,' Mr Horyn, deputy head of parliament's foreign affairs commission, said.

But the United States will bar the return of Mr Demjanjuk, the Justice Department said. Neal Sher, head of the department's Nazi-hunting Office of Special Investigations, said that despite the acquittal the US has found Mr Demjanjuk ineligible to enter on the grounds that he served as a guard at Nazi death camps.

'There would have to be an executive order (by President Clinton) to get him back in,' Mr Sher said. 'Demjanjuk got off on a technicality.'

The Demjanjuk case was only the second Nazi war crimes trial to be held in Israel, the first being the trial, and subsequent execution in 1961, of Adolf Eichmann, author of the Final Solution. Immediately after the war bringing Nazis to justice was not a priority for the new state, largely because, for many years, there was no desire to go back into the horrors of the recent past.

'In the Fifties the Holocaust was still like a dark family secret for many people. They refused to talk about it,' says Tom Segev, author of the Seventh Million, a new book on the Holocaust.

The Eichmann prosecution changed all of that. The trial was deliberately used by the Israeli government as a means of bringing the Holocaust out into the open for Israelis and of educating them about the history. It was from that period that the Holocaust was promoted as a positive and central aspect of Israeli identity.

Although there was never a hunger for lesser war crimes trials, the prosecution of a suspect Ivan the Terrible, particularly when the case seemed so watertight, was hard to turn down. The case, once again, was used as holocaust education, beginning with lengthy expositions of the history. It was taken as a given by most people that the suspect was guilty from the start, and the trial became, also, a 'show trial'. As one observer put it: 'Everyone broke all the rules.'

Yesterday's acquittal has made sure of one thing: that if Israel does hold a war crimes trial again, it will never approach it in the same way. But few analysts here believe there is any real desire for further cases to be brought, and certainly no need, in the 1990s, for such trials in Israel as a means of 'Holocaust education'.

In his judgment Mr Shamgar appeared anxious to forstall any critics of the court, who may accuse the judges of undermining this 'Holocaust consciousness' by acquitting Mr Demjanjuk. He devoted lengthy sections of the judgment to reciting the horrors of the death camps. And he stressed the court was not questioning what happened at Treblinka by acquitting Demjanjuk. He also upheld the credibility of the original witnesses.

(Photograph omitted)