PERSPECTIVE ON THE HOLOCAUST : History Will Survive Demjanjuk : His war-crimes conviction might be reversed because the Israeli court puts judicial fairness first.

Norman Menachem Feder, an associate at a law firm in New York, clerked at the Supreme Court of Israel.

New evidence in the case of former U.S. citizen John Demjanjuk may force the Supreme Court of Israel to reverse a Nazi war-crimes conviction that was based largely on eyewitness testimony. If that happens, revisionists will celebrate the ostensible demise of Holocaust historiography. After all, while much of the methodology of the Holocaust is documented, our knowledge of the brutality of the Holocaust depends significantly on survivors’ stories.

But such a reaction would misconstrue the role of a court. Courtroom determinations reflect judicial truth, not necessarily historical truth, and judges act as jurists, not historians. Letting Demjanjuk walk would reveal more about Israel’s conception of due process than it would about the history of the Holocaust.

Demjanjuk, a Ukrainian by birth whose given name was Ivan, was sentenced to death by an Israeli trial court for being “Ivan the Terrible,” a particularly heinous gas chamber operator at the Nazi death camp in Treblinka, Poland, during World War II. His appeal to the Israeli Supreme Court rests essentially on what his lawyer calls “one of the most egregious examples of mistaken identity in legal history.” A decision is said to be imminent.


Normally, the Supreme Court accepts appeals only for issues of law. But in this case, the court permitted Demjanjuk to introduce allegedly exculpatory evidence that had not been presented at trial. This evidence consists largely of transcriptions of statements by Ukrainians who served in Treblinka that were elicited in postwar investigations by Soviet authorities. In apparent conflict with the sometimes dramatic trial testimony of five eyewitnesses who identified Demjanjuk in open court as Ivan the Terrible, a number of the transcribed statements identify Ivan the Terrible as Ivan Marchenko--that is, not Demjanjuk. Curiously, Demjanjuk declared falsely on his U.S. visa application in 1948 that his mother’s maiden name was Marchenko. Some of the Ukrainian statements actually may implicate Demjanjuk as a guard at the Nazi death camp in Sobibor, Poland.

Chronologically, the Ukrainian statements are closer to the horrors of Treblinka than the courtroom identifications. However, in contrast to the five eyewitnesses, who were cross-examined, the Ukrainian deponents cannot be questioned; all are dead, most by execution by the Soviets for war crimes.

If the court credits the Ukrainian statements enough to free Demjanjuk, will it open all Holocaust survivors’ stories to doubt? If five Jewish judges fail to imbue survivor testimony with categorical credence, will Holocaust history instantly shrink to only what is corroborated by document or film?

No and no. Justice and truth are not synonyms. Determinations in a courtroom serve various social interests, only one of which is discovery of the truth. Yes, a court’s impression of what occurred can reflect what actually transpired. But a court’s version of events cannot be presumed to clone history. This is particularly true when the court’s role is to protect criminal defendants from abusive prosecution by maintaining a system of procedures meant to guarantee fairness.

Sometimes, historical truth is knowingly sacrificed for the sake of other judicial ideals. For instance, in this country, illegally obtained evidence, even if decisively incriminating, is not admissible in court because public policy dictates mitigating police power. Similarly, we license juries to decide cases, even though occasionally we will doubt the verdicts, because we fear empowering judges too much.

With Demjanjuk, the issue to be resolved is whether he has been identified as Ivan the Terrible in accordance with Israel’s judicial standards and procedures. If he has not, the implications for Holocaust annalists are nil because the legitimacy of survivors’ accounts does not hinge upon judicial endorsement. The Israeli court may fully believe the eyewitnesses but overturn the guilty verdict because, for example, the court may construe due process to require deference to chronologically superior evidence when legal proceedings occur so many years after the crimes.


The history of the Holocaust and, specifically, the existence of Ivan the Terrible and his infamous atrocities remain unchallenged by Demjanjuk’s appeal. Even conservative commentator Patrick J. Buchanan, who flirts with Holocaust revisionism and has long been a champion of Demjanjuk, acknowledges the evils of Treblinka and the offenses committed by Ivan the Terrible. If Demjanjuk is vindicated in court, the Holocaust still happened, Ivan the Terrible still existed and Demjanjuk still may be sin personified.

Granting Demjanjuk’s appeal would provide no fodder for the revisionists. It simply would illustrate that the historian, not the judge, must chronicle the Holocaust.