Israel's agony over 'Ivan the Terrible' draws to a conclusion: A court rules today on the case of John Demjanjuk, Sarah Helm writes from Jerusalem

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The Independent Online
HOW could both US and Israeli war crimes prosecutors have got the identity of 'Ivan the Terrible' so dramatically wrong? And why did the US not produce evidence in its possession that could have helped identify the real monster of Treblinka, averting a potential legal fiasco on a huge scale?

These questions will demand answers today if, as expected, the Supreme Court in Jerusalem rules that John Demjanjuk is not Ivan the Terrible, operator of the gas chambers at Treblinka Nazi death camp in Poland.

In 1986 John Demjanjuk, a Ukrainian immigrant living in the US, was extradited to Israel after investigation by US Nazi-hunters to face charges of being Ivan the Terrible. In 1988 he was convicted and sentenced to hang.

Overwhelming evidence has since emerged to suggest the conviction was wrong, and that another man, Ivan Marchenko, was the real Treblinka monster - evidence which Israeli judges are today expected to acknowledge for the first time. The judges then have two options. They may decide that enough evidence was presented during the trial to convict John Demjanjuk of lesser war crimes. Or they may rule that Demjanjuk, 73, who was stripped of his US citizenship in 1981, should walk away a free man: a stateless person on the streets of Jerusalem.

Whichever option the judges select, the reversal of the Ivan the Terrible charge will be a monumental embarrassment for the Israeli justice system, and there are already signs that Israel is looking to the US as its scapegoat, asking why Washington did not produce certain crucial evidence which might have made Israel think twice about the prosecution.

The defence and Demjanjuk's family have consistently argued that the main prosecution case - witness identification by Treblinka survivors in Israel - was highly prejudicial and tainted. If the conviction is overturned on appeal today, however, it will not be on the grounds of the suggestive identification methods, the unreliability of the survivors' memory - more than 40 years after the events - or the possible need, on the part of the witnesses, to expunge the 'guilt' of survival. It will rather be because of the work of Soviet investigators after the Second World War, and the painstaking work of Demjanjuk's lawyer, Yoram Sheftel, his son John Jr, and brother-in-law, Ed Nishnic, in uncovering it.

When, in 1944, the Red Army liberated areas held by the Nazis they took with them historians and investigation units to detail war crimes and to identify Soviet defectors who may have been Wachmann (guard) at Nazi death camps. As each Wachmann was identified, he was interrogated and a file on him was created with relevant documentation, for use in war crimes trials.

In 1976 the Soviet Union supplied a list, with files, of Ukrainian war criminals living in the US. On this list was John (Ivan) Demjanjuk, identified as a Wachmann at Sobibor and Flossenburg death camps. (Demjanjuk's name was never linked by the Soviet Union to Treblinka - it was only the Israeli witnesses who said he was there).

Also on the list was Fedor Fedorenko. He had been charged by the Soviet Union with being a guard at Treblinka, to which he later confessed before being executed in 1986. Fedorenko's file was later to prove crucial to the Demjanjuk appeal.

After Demjanjunk's conviction for being Ivan the Terrible Mr Sheftel and the family decided the only way to win an appeal was to identify the real Ivan the Terrible. They made an application under the Freedom of Information Act for the Fedorenko file, which the Soviet Union had given to the US in 1978. When the US continued to withhold the information, Mr Sheftel and family members investigated Soviet archives themselves, eventually gaining access to the Fedorenko file: this produced the testimony of 22 Treblinka guards, all of whom identified Ivan Marchenko - who has since disappeared without trace - as Ivan the Terrible.

At the same time the Israeli prosecution lawyer, Michael Shaked, aware of this line of inquiry, had made the same journey to examine the strength of the evidence. Subsequently, at the appeal, he was unable to dispute the authenticity of the statements, but said the evidence of the Soviet witnesses was only 'hearsay' and the circumstances under which it was given impossible to establish. Mr Shaked had also by this time begun significantly to strengthen his case again Demjanjuk as a 'lesser Ivan' - a Wachmann at Sobibor and Flossenburg, evidence which the prosecution says is now irrefutable.

Last year, the US Freedom of Information Act search finally produced documents proving that the US had indeed been passed some elements of the Fedorenko file. The US had, all along, been in possession of at least two Treblinka Wachmann statements identifying Ivan Marchenko as Ivan the Terrible.

In the defence view, the US has never satisfactorily explained why the files naming Marchenko were not produced as Demjanjuk's case was prepared, or why the files did not at least spark further investigations; Israel has never satisfactorily explained why it did not suspect such evidence might exist at the time, or why it did not ask the US for it.

(Photograph omitted)