Demjanjuk case could set precedent in Germany

BERLIN - For Bronislaw Hajda, an 85-year-old Polish-American, the trial of John Demjanjuk is a bad omen.

Like Demjanjuk, whose trial began Monday in Germany, Hajda was born in Eastern Europe and taken prisoner by the Nazis at a young age. He too trained in an SS camp and was employed as a Wachman (a non-German SS soldier who assisted German soldiers in killing Jews) at a concentration camp in Poland.

Like Demjanjuk, he too fled to the United States at the end of World War II and has already been put on trial for his crimes. Unlike Demjanjuk, however, no one is hunting Hajda - not even Germany.

On the face of it, it was only fate that brought Demjanjuk to the witness stand in Germany while Hajda spends his remaining years as a free man in Chicago. But in fact the reason for this difference is Germany's policy of not trying suspected war criminals who are not themselves German. Demjanjuk, therefore, represents an unusual precedent, one that could obligate Germany to try similar suspects in the future.

Demjanjuk, 89, is accused of assisting in the murder of 27,000 Jews in 1943 while a prison guard at the Sobibor extermination camp in Poland. Hajda, four years his junior, was charged 12 years ago with aiding in the murder of hundreds of Jews in Treblinka, another extermination camp in Poland, in 1944. Like Demjanjuk, who has already been tried in Israel, Hajda understands the legal process well.

In 1997 a U.S. court ruled that Hajda had "without doubt" committed the crimes attributed to him. But because the offenses were not carried out in U.S. territory the American justice system had no authority to rule on them, but only to deport him to a country with less restrictive laws.

U.S. legal authorities began investigating Hajda's past in 1994 and later revoked his citizenship. Four years later a U.S. immigration court ordered his deportation to Poland, where he was born, or Germany, from which he had immigrated to America. For more than a decade he has been waiting to be deported.

There are hundreds, perhaps thousands of others from Russia, Hungary, Romania and the former Yugoslavia in similar situations - elderly retirees who served in Nazi camps and fled to the U.S. after the war. Over the years 107 of them have been detained by U.S. authorities and had their citizenship revoked. In Europe, however, few seem to care.

Eli Rosenbaum, head of the U.S. Justice Department bureau that investigates potential crimes against humanity, knows their names well. Europe has abandoned its moral and legal responsibility over Nazi crimes," he said, singling out Germany as having thwarted every U.S. attempt to return Nazi criminals to the Continent.

For its part, Germany has long claimed that it is responsible only for trying its own. The official position of its Federal Foreign Office, revealed this week in Die Zeit, is to reject every request to try Nazi criminals if they do not hold or have never held German citizenship, and if the odds of convicting them are low. Underpinning the policy is concern that in the event of an acquittal these war criminals would live out their lives as free men on German soil. The suspects' countries of origin have expressed similar positions, some because of the high cost of legal proceedings, others out of fear of bringing their past to light.

The case of Demjanjuk, therefore, represents a legal precedent of the utmost significance for Germany. If he is convicted the state will find it difficult to refuse to try those suspected of similar crimes. Hajda and others could then find themselves under lock and key - if they live that long.