The pariah loophole

John Demjanjuk’s last appeal to avoid deportation was rejected by the U.S. Supreme Court on May 19. The 88-year-old accused Nazi concentration camp guard was stripped of his citizenship and ordered sent to Ukraine, his birthplace; Poland, the locus of the crimes; or Germany, the heir to the Nazi regime under which he served.

Yet, as it now stands, he is still in the United States. Why? He can’t be exiled unless another country agrees to accept him. For the time being, he remains free.

In this, Demjanjuk is not alone. There are five other former Nazi criminals against whom the U.S. Justice Department successfully completed deportation proceedings but whom no country has been willing to accept. Romanian-born Johann Leprich, a guard at Mauthausen camp in Austria, is one; his deportation was finalized in 2006. Another is Jakiw Palij, born in a region of Poland that is now in Ukraine. He was a guard at Poland’s Trawniki labor camp (where in a single day in 1943, 6,000 prisoners were murdered), and his deportation was finalized in January 2006. Mykola Wasylyk, another Trawniki guard also found to be at the Budzyn camp, had his final appeal denied in 2004.

Theodor Szehinskyj, also born in a part of Ukraine that used to be Poland, was in the SS unit called the Death’s Head Brigade and was a guard at the Gross-Rosen, Sachsenhausen and the Warsaw concentration camps. His deportation litigation was completed in March 2006.

Finally, there is Anton Tittjung. Tittjung was born in what was then Yugoslavia and is now Croatia. He was a Waffen SS member and a guard at Mauthausen.

Should any of these criminals worry that deportation is imminent, they might take comfort from the fact that the Supreme Court declined to hear Tittjung’s final appeal way back in 2000. He still remains free in the United States. In addition, in recent years, four of their denaturalized Nazi peers died before they were ever deported.

In all of these cases, the countries of their birth, such as Ukraine, Romania, Poland or Croatia, and the countries where their crimes were committed, such as Austria or Poland as well as Germany, were contacted by the Justice Department, and none expressed interest in receiving these now “stateless” persons.

There is no law, domestic or international, that requires foreign countries to accept or extradite these former Nazis -- or to give a reason why they don’t. However, their reasons are easy to divine and include not wanting to burden the state with these aged citizens, no desire for an expensive investigation and trial, and fear that nationalist or neo-Nazi elements might be aroused by reopening Nazi-era wounds.

But that does not lift their moral responsibility to accept and/or prosecute the criminals of the Nazi era. In what society do murderers go free? What nation can forget the crimes of the Nazi era? Given that the victims of the Holocaust cannot cry out for justice, who will?

Poland, Ukraine and Romania might make the argument that they were under Nazi rule at that time. Germany has no such excuse. And although Germany has prosecuted many native-born Germans for their World War II-era crimes, they have been less eager to do so as time goes by. Germany has had even less interest in prosecuting those non-Germans, like Demjanjuk, who served the Nazis in the countries they conquered -- as though Germany could draw a border around the Holocaust crimes it is responsible for.

Regardless of any moral impetus countries might have to extradite Nazi criminals, until now there has been no legal one. That may change. On May 12, Sen. Gordon Smith (R-Ore.) introduced the World War II War Crimes Accountability Act of 2008, which would require the U.S. to evaluate foreign countries’ cooperation in extraditing or prosecuting Nazi criminals the U.S. wants deported. Assistance or lack thereof would affect a nation’s visa-waiver status for business travelers and tourists.

More than 50 years after the end of World War II, it is fair to ask: Why do we care? What’s the point of expending our time, effort and money -- and that of other countries -- on these old men? Why not move on? What of forgiveness?

Forgiveness or mitigation as a legal, or even a moral, concept should only be available to those who are willing to fully confess their participation in the crimes of the Nazi era and express remorse. But to date, there have been no complete confessions by the guilty and no remorse. Demjanjuk, for example, continues to deny any Nazi involvement whatsoever, even in the face of incontrovertible documentary evidence unearthed after the collapse of the Soviet Union that confirmed his presence at numerous concentration camps.

Still, time is passing. In the case of these criminals, there is some irony in the fact that they have lived long enough to be exposed for who they were and what they did.

If no country accepts them before they die, at least they won’t pass from this Earth as innocents. It may not be final justice, but it is some comfort.