COMMENTARY: DEMJANJUK DEPORTATION A MILESTONE
Harry Reicher

Texas Lawyer
31360012
June 11 2009

No time limits should apply to prosecuting genocide and crimes
against humanity

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.