The verdict in the Demjanjuk trial has been hailed as the last of the Nazi-era. Less attention has been given to the judicial innovations that characterised the proceedings. In fact, the hearings in Munich represented a break with the tradition established at Nuremberg and previous trials in Germany. The trial of John Demjanjuk owes more to the prosecution of Adolf Eichmann, the 50th anniversary of which is currently being marked around the world.
The International Military Tribunal at Nuremberg set out to try the most senior surviving leaders of the Third Reich. The evidence was overwhelmingly document based; there were few eye-witnesses. As a result, it was protracted and deadly dull. By the time the IMT was finished, the Allies had lost the appetite for more trials. Only the Americans persisted with a further 12.
When the Allies got around to the SS rank and file, the Gestapo, the SA and the Nazi Party, they had run out of steam. Further investigations and prosecutions on a massive scale threatened to alienate the German population, whose co-operation was needed for reconstruction. Consequently, the de-Nazification tribunals were little more than a farce.
The newly established judiciary in West and East Germany was left to deal with the "small fry". But the legal code made it hard to try men who were "only" accessories. As a result, few of those who had robbed, deported, guarded, or killed Jews were tried. Fewer were convicted and only a handful received severe penal sentences.
By 1958, even the West Germans were embarrassed by this. A Central Office for the Investigation of Nazi Crimes was set up and dozens of cases opened. Eventually, the Office was responsible for a sequence of major trials, notably the prosecution of Auschwitz camp staff and guards in Frankfurt in 1963-64.
Germany wanted no one, however minor, to escape justice
Although eye-witnesses played a vital role in Frankfurt, they were carefully selected for their ability to identify the accused and for the reliability of their testimony. In this sense, the format differed from the trial of Adolf Eichmann in Jerusalem two years earlier.
Gideon Hausner, Israel's attorney general, had assumed direction of Eichmann's prosecution and threw out the case prepared by the Israeli police. In his eyes, it was too much like Nuremberg, relying on documents and a few eye-witness contributions. Hausner wanted the trail to narrate the entire course of Jewish suffering under the Nazis. He called for witnesses who could illustrate the stages of destruction, instances of resistance and the response of "bystanders", whether or not this had any direct bearing on Eichmann.
The outcome was a spectacle that enhanced knowledge about the genocide against Europe's Jews and transformed perceptions of the victims. It had legal reverberations, too. Unknowingly, Hausner pioneered what the American legal historian Lawrence Douglas has dubbed "didactic legality".
Conceived in this way, prosecutions and trials are not simply about retribution and deterrence. Nor are they intended only to put away a person who is a danger to society. They are intended to expose past evils, demonstrate the rule of law and convey the virtues of a democratic society. The legal theorist Mark Osiel unashamedly calls them "liberal show trials".
In Munich, as in Jerusalem four decades earlier, a succession of eye-witnesses told harrowing stories of persecution, deportation and survival that did not touch directly on the accused. Only two of the witnesses, Thomas Blatt and Philip Bialowicz, had actually been in Sobibor. Neither could recall Demjanjuk.
The other 23 told how the Jews of the Netherlands had been subjected to Nazi-imposed discrimination, culminating in round-ups and transportation "to the East". The prosecution selected Dutch Jews because a proportion of Sobibor's victims had come from western Europe. Unlike the mass of Jews sent to Sobibor from Poland, they were registered on deportation lists. So it was possible to work out roughly how many had been sent to the camp while Demjanjuk was a guard there and, crucially, to identify them.
By enabling their relatives to appear as co-plaintiffs, the trial took on a human dimension. Yet this was an innovation for the rather strait-laced German courts and a departure from earlier practice. It was also quite different from the conduct of prosecutions under the 1992 War Crimes Act in this country.
The British police and the courts require that, to bring a prosecution under the Act, there has to be solid, eye-witness evidence of actual murder. It is also a priority to seek and charge men in command roles, not "foot".
Demjanjuk would have been considered too minor to pursue. Moreover, the bulk of evidence against him was circumstantial and hearsay. He could never have come to trial in England.
The distinction between the trials in Jerusalem, London, and Munich reflects shifting attitudes towards the judicial process. The German authorities felt that it was worth prosecuting a "small fry" in order to establish that no one, however minor their role, could escape retribution and in the process help to educate a new generation about Nazi crimes.
