Bin Laden and Demjanjuk - English

After Osama's Death, A Confusion of Legal Norms

By Yascha Mounk20.05.2011Global Policy

When Osama Bin Laden was killed, German journalists lamented the violation of basic legal principles. When Nazi perpetrator John Demjanjuk was released without punishment, they rejoiced. It might be time for a reassessment of our principles.


In the past two weeks, two horrible criminals were brought to justice: Osama Bin Laden and John Demjanjuk. The German reaction to both cases was very peculiar, especially if we begin to compare them. Bin Laden, the terrorist mastermind behind the attacks that killed more than 3000 civilians, was shot to death by American soldiers in Abbottabad in Pakistan. In Germany, the public was outraged about this alleged act of lawlessness. Demjanjuk, found guilty for aiding the murder of 27,900 civilians during World War II, was allowed to leave the Munich court room as a free man. The German public rejoiced about this “triumph of justice”. What? When talking about Bin Laden or Demjanjuk, it is tempting to see the world as simply back and white. But both cases force us to consider complex moral questions. Is Bin Laden a normal murderer – albeit with a longer list of victims – who deserves a civilian court trial? Or is he the commander of a heinous terrorist army who can be killed in battle as an enemy combatant? Should we lock Demjanjuk – the last living representative of one of the most cruel regimes in human history – into a prison cell until he dies? Or is he a frail old man who should not be subjected to revenge and punishment?

Should a terrorist be granted a civilian trial?

These questions are serious. And it is understandable that many German opinion leaders would have preferred to see Bin Laden go to trial before a regular court. It is also understandable that judge Ralph Alt found it wrong to send Damjanjuk to prison. But the self-glorification of the German media was disturbing in both cases. Allegedly, the death of Bin Laden was the ultimate proof of a Wild Wild West approach to legal questions by the United States. In contrast, the trial of John Demjanjuk allegedly highlighted the achievements of the German legal system. But should we be satisfied that renegade justice ends with the death of the world’s most wanted terrorist, while Demjanjuk is let off without punishment? With all due respect for subtle arguments and the German media: Whoever mourns the death of Bin Laden and praises the release of John Demjanjuk ist not being subtle but deeply confused. The lack of appreciation for an adequate punishment is further exacerbated by a convenient blindness towards history. Demjanjuk’s trial went reasonably well, if we leave the ultimate outcome out of the equation. The district attorney worked hard to even bring him before a court of law, and the presiding judge seemed very aware of the importance of the last trial of a former Nazi murderer. In the history of German Nazi trials, this is the exception. Because many former members of the Nazi state wielded their influence even after 1945, many of the worst criminals never received the punishment they deserved. The few perpetrators who were convicted usually got off with mild punishments. Again and again, judges accepted the defendants’ arguments that they had only obeyed orders… The atmosphere at the Auschwitz trials can be examined through two simple questions. When the sentences were read during the first “Auschwitz trial” and the defendants were led away to begin serving their short prison sentences, the police officers on duty saluted their former comrades. When Victor Capesius was released from prison after serving a nine-year sentence for the murder of 8000 Jews, he went to a concert in Göppingen the same day – and was greeted with standing ovations.

A history of leniency

Germany can be proud that such a reaction would be unthinkable today. But the case of John Demjanjuk still illustrates the failures of our judicial system. If old age is the primary reason for his release without punishment, he should not forget that it was the lethargy of the German judiciary that prevented earlier trials. This trial was probably the last opportunity to dole out adequate punishment to a Third Reich perpetrator. The leniency can be seen as the continuation of policies that have characterized the German judiciary since the end of World War II. Although much has improved, this is not exactly a moment for triumphant rhetoric. But let us return to the question of renegade frontier justice. I am not especially comfortable with the idea that Bin Laden might have been killed in cold blood – like the average German journalist, this strikes me as problematic. But despite all the damage that such commando raids might inflict on the principles of justice, I feel a certain satisfaction. Bin Ladens violent death is a more fitting end to his life than the benefits of old age we tend to grant to Capesius and Demjanjuk. _This article is a translated version of Yascha Mounk’s original, to be found “here”:



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