Decision Not to Try Demjanjuk Again Dismays Jewish Groups in U.S. and Israel

Jewish groups have reacted with dismay to the Israeli government’s decision not to bring new charges against John Demjanjuk, who was acquitted last month of being the sadistic Nazi guard “Ivan the Terrible.”

Attorney General Yosef Harish made the announcement Wednesday and the Israeli Supreme Court said it would weigh the state’s position against eight petitions demanding that Demjanjuk be tried for other war crimes.

The court said it would make its decision at the end of the week, at the earliest.

In its July 29 ruling overturning Demjanjuk’s conviction as the notorious Treblinka death camp guard, the court said it found convincing evidence that Demjanjuk was in fact trained at the Trawniki camp for SS guards and served at the Sobibor, Flossenburg and Regensburg camps.

Harish said on Wednesday that his decision not to retry Demjanjuk was made with great sadness, but that the government of Israel had been legally crippled and could not move forward.

“I went back and forth without end,” Harish wrote to the court. “With a heavy heart I concluded we cannot charge Demjanjuk with an offense in new criminal proceedings. We’ve no choice but to deport him from Israel,” he wrote.

But amid a flurry of legal activity both here and in the United States, the question remained this week: Should the high court decide against a new trial, where would Demjanjuk go?

A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati has ruled that he can return to the United States, which is his stated preference.

But the U.S. Justice Department is fighting that decision on the grounds that Demjanjuk still committed other war crimes and lied to immigration officials in entering and becoming a citizen of the United States.

Prosecutors have appealed to the full court to review the decision and to issue a stay pending the outcome of that review.

COURT UNLIKELY TO OVERRIDE HARISH

On Wednesday, hours after Harish announced his decision, the Justice Department asked the Cincinnati court to act as expeditiously as possible in deciding on a stay.

Without that stay, said 6th Circuit spokeswoman Debra Nagle, “Demjanjuk could come back to this country and the Justice Department could do nothing.”

The recommendation of the Israeli attorney general is not binding, but the Israeli Supreme Court traditionally defers to the state’s authority unless its position is deemed “highly” or “extremely” unreasonable, said Kenneth Mann, a law professor at Tel Aviv University.

“The court would have to find exceedingly special circumstances in which to override the attorney general’s view,” Mann said.

In explaining his decision, Attorney General Harish said that a new trial on crimes allegedly committed by Demjanjuk at the Sobibor and other death camps would constitute double jeopardy — trying a person on the same charges twice. This is prohibited under both U.S. and Israeli law.

The other obstacle Harish cited was the fact that Demjanjuk had been extradited from the United States for being Ivan the Terrible, and not for crimes he committed at Sobibor.

Finally, a new trial, said the state, would be unreasonable and not in the public interest.

Avi Beker, director of the World Jewish Congress in Israel, one of the petitioners for a retrial, said he found the state’s reasoning shocking. He said it amounted to a “rewriting (of) the history of the State of Israel and Jewish history.

“On the part of the Jewish Diaspora,” he said, “there is a major interest in the case and, more than that, a feeling that the decision of the court to let Ivan Demjanjuk be a free person and return to the United States would be a major violation of the concept of Nazi crimes and crimes against humanity.”

Beker said he did not want to address the technicalities of the state’s reasoning, but said that international law treats Nazi crimes as “special and different” from regular crimes.

‘A CRIME AGAINST HISTORY’

Harish’s decision not to retry provoked similar outrage among Jewish leaders in the United States.

This “constitutes a crime against history and an assault on memory,” said Elan Steinberg, executive director of the World Jewish Congress in New York.

The Israeli Supreme Court did find that “Demjanjuk was part of the extermination process of the Nazis,” he added. “This decision is not good for those of us who would like to see Demjanjuk not come back to the U.S.”

Benjamin Meed, president of the American Gathering of Jewish Holocaust Survivors, called Harish’s decision “shocking.”

“It is a tremendous blow to Jewish memory. Survivors were let down,” he said.

“Miraculously, some victims survived to tell the story (of the Holocaust). This is enough,” Meed added. “Israel has a murderer in its hands and is going to just let him go.”

Abraham Foxman, national director of the Anti-Defamation League and a survivor himself, spoke of his own contradictory reactions.

“From the perspective of a survivor, I want to see this man imprisoned for the rest of his life. As far as judicial process is concerned, I understand why Israel’s attorney general would feel it’s the appropriate thing to do.”

Rabbi Marvin Hier, dean of the Los Angelesbased Simon Wiesenthal Center, said, “Israel had a legal obstacle they were concerned about — double jeopardy.

“But, taking that into consideration, Israel has been much too kind to Demjanjuk, an accomplice to mass murder who probably assisted in killing more Jews than were killed in the Arab-Israeli wars, and is now a free man.

“Every accomplice to mass murder all over the world must be envious of the dream sentence he received,” Hier said.

(Contributing to this report were JTA staff writers Debra Nussbaum Cohen and Susan Birnbaum in New York.)