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Suspected Nazi should face war crimes charges, UB legal expert says

By CHARLES ANZALONE

Published June 27, 2013

“But so long as even one perpetrator of Nazi atrocities is alive, it is not too late to honor the victims or work for some small measure of justice.”
Stephen Paskey, lecturer
UB Law School
Stephen Paskey

Stephen Paskey

Suspected Nazi military commander Michael Karkoc should face charges for alleged war crimes whether or not he ordered his men to kill civilians or personally was involved in the killings, UB Law School expert Stephen Paskey says.

“In his father’s defense, Andrij Karkos (Editor’s note: his son spells his name differently) declared that there is no evidence of his father taking ‘a direct hand in war crimes,’ and that his father ‘was never a Nazi,’” says Paskey, who teaches legal writing and is an experienced litigator in cases involving alleged Nazi collaborators.

 “Both points are irrelevant,” he says.   

“Prosecutors need not prove that Karkoc ordered his men to kill civilians or personally ‘took a hand’ in the killings. Under the well-established principle of command responsibility, Karkoc would be guilty of war crimes if he was present while his men committed atrocities and failed to take all necessary and reasonable measures to stop them,” Paskey says.

Karkoc, 94, is a resident of Minneapolis who allegedly served as a company commander in the Nazi-led Ukrainian Self Defense Legion. Allegations against Karkoc surfaced recently as a result of an investigation by the Associated Press, which was prompted by a tip from a British amateur historian.

Members of Karkoc’s company and other witnesses have told stories of brutal attacks on Polish civilians. In one incident, Karkoc’s men allegedly torched the Polish village of Chłaniów and machine-gunned innocent men, women and children as a reprisal for the killing of the legion’s commander.

Paskey served as a senior trial attorney in the U.S. Department of Justice, where he litigated denaturalization and deportation cases against men who assisted in Nazi war crimes. He says the case of Karkoc presents the U.S. government with a quandary.

Some have argued that the justice department should revoke Karkoc’s naturalized citizenship and deport him from the United States, Paskey says. If Karkoc were a commander in a Nazi-led military unit, that alone is sufficient grounds for deportation, regardless of whether he participated in war crimes.

“But any effort to deport Karkoc for that reason is almost certain to fail,” Paskey explains, “because no country, not even his native Ukraine, would willingly accept him.”

Instead, the outcome of the case will depend on the actions of the Polish and German governments,” he says.

If the allegations against Karkoc are true, Poland is the most appropriate country for prosecution, Paskey says. “The crimes were committed in Poland against Polish civilians. The Polish government should move swiftly to request his extradition and prosecute him for war crimes, even while he remains a U.S. citizen.

“Over the past decade, Polish officials have repeatedly declined to prosecute men who committed Nazi war crimes on Polish soil,” adds Paskey. “Poland declined to prosecute even in the case of John Demjanjuk, a former guard at the Sobibor death camp who helped march thousands of Jews to the gas chambers at gunpoint. And with the lone exception of Demjanjuk, the German government has not prosecuted Nazi war crimes suspects who were not German citizens.”

The U.S. government should concentrate on helping prosecutors investigate the case, Paskey says.  

“If prosecutors move swiftly and if Karkoc lives for at least another four to five years, it is still possible that he could yet stand trial for war crimes.”

Beyond Paskey’s legal expertise, he volunteers this information about his Polish heritage:

“In a small village in northeastern Poland, a weathered stone marks the grave of a man who is probably a distant relative of mine,” he says. “The stone reads: ‘Murdered by the Hitlerites. Honor his memory.’

“Some will say that a 94-year-old man should not be prosecuted for crimes committed 70 years ago,” Paskey says. “But so long as even one perpetrator of Nazi atrocities is alive, it is not too late to honor the victims or work for some small measure of justice. And it is never too late to send a message to those who committed atrocities in the decades since World War II, in places ranging from Somalia and the Balkans to Cambodia and Chile: ‘We remember; we are looking for you and we will not allow you to enjoy the life you denied your victims.’”

Allegations are easy to make, but as the Demjanjuk case showed, it is quite another matter to get a conviction. After decades of legal wrangling and legal reversals, Demjanjuk still ended up legally innocent because he died before his appeal could be heard by the German court. The German court overturned Demjanjuk's earlier conviction. Under German criminal law, innocence is maintained until all appeals have been exhausted. (See Wikipedia;  John Demjanjuk)

Demjanjuk had also been acquitted earlier by the Israeli High Court.

Anything Paskey has said about Demjanjuk should have been qualified as allegations and accusations. The allegations and accusations were never proven "beyond a doubt" in a court of law, which is the legal criterion for establishing guilt. Paskey should know that.

The Demjanjuk case is a reminder that in old and complex cases like this, it is wise to presume innocence until legally proven otherwise.

As for "command responsibility," Karkoc was a allegedly a 2nd lieutenant (the lowest of the commissioned officer ranks) like William Calley of the My Lai massacre during the Vietnam War.

In 1971, after Calley's guilty verdict, U.S. veterans expressed their outrage, because My Lai was not an unusual occurrence.

At least Calley was tried by a court martial. Karkoc, if he disobeyed an Nazi German Police-SS order, could have faced summary execution.

Bob Sergeant