by Steve Timmer

May 24, 2014, 2:00 PM

So, Franz Kafka was German, right?

Most readers here know the story of Michael Karkoc, the Ukrainian-born man who emigrated to the United States after World War II, raised a family and worked his whole life as a carpenter, and now, in his mid 90s, finds himself accused of being a Nazi war criminal.

A May 23rd article in the Strib (actually an AP story bylined by reporter David Rising) contains this:

The Federal Court of Justice said in its ruling published Thursday that 95-year-old Michael Karkoc’s service as a commander in the SS-led Ukrainian Self Defense Legion made him the “holder of a German office.” This gives Germany the legal right to prosecute him even though he is not German, his alleged crimes were against non-Germans and they were not committed on German soil.

Someone in that role “served the purposes of the Nazi state’s world view,” the court said.

What is the evidence that Karkoc personally committed or ordered war crimes? Here’s a little more from the article:

The German investigation began after the AP published a story last year establishing that Karkoc commanded a unit accused of burning villages filled with women and children, then lied to American immigration officials to get into the United States a few years after World War II.

A second story uncovered evidence that Karkoc himself ordered his men in 1944 to attack a Polish village in which dozens of civilians were killed, contradicting statements from his family that he was never at the scene.

Those stories were also written by David Rising, in effect quoting himself, and counting coup. The “second story uncovered” is a report in a Soviet-era intelligence file by a private who said Karkoc was involved in killings in a Polish village:

However, a newly unearthed investigative file originally from the Ukrainian intelligence agency’s archive [emphasis added] reveals that a private under Karkoc’s command testified [emphasis added] in 1968 that Karkoc ordered the assault on Chlaniow in retaliation for the slaying of an SS major. The major, slain by resistance fighters, led the Ukrainian Self Defense Legion, in which Karkoc was a company commander.

Private Sharko — that is, or rather was, his name — has been dead for thirty years and may have been under investigation for war crimes himself. I wrote a story here commenting on the Rising article, containing the quote above. (There is a lot of information at the link that I won’t repeat here, but I recommend that you read it to get a fuller understanding of what’s afoot.)

Pvt. Sharko was purportedly being questioned by a Soviet-bloc intelligence agency in 1968, not testifying in court (although in the earlier story, Rising said he “testified;” there’s a big difference). The same David Rising also wrote a story, not about Michael Karkoc (also referred to in the link above), about how Soviet bloc intelligence agencies planted stories and made up evidence against emigres to the States after the war:

The FBI report accuses the Soviets of anonymously feeding names of emigres to the United States as suspected Nazis. The OSI would then ask the Soviet Union for evidence from captured Nazi records, and “the KGB produces a record purporting to tie the accused with the commission of Nazi atrocities.”

It is flat-out funny to me, although undoubtedly not to Michael Karkoc and his family, that ace reporter David Rising writes about the Ukrainian intelligence service file against Michael Karkoc, and 2) how the Soviet bloc made stuff up, yet he doesn’t join the dots, at least to inform readers about why the story might be doubted.

I’m sorry, but I think this is just shoddy.

But let’s summarize the case against Michael Karkoc, at least as explicated by AP reporter David Rising.

The only person who could provide first-person testimony against Michael Karkoc is long dead. His written statement to Ukrainian security services probably cannot even be authenticated (proved to be real), and even if it is, it would be inadmissible hearsay, at least in the United States. On top of that, it is of highly questionable veracity, for the reasons that David Rising himself says. No lawyer representing Michael Karkoc can ask Pvt. Sharko about his observations, recollections, his competence as a witness, or his truthfulness (what did he receive in exchange for fingering somebody else?).

The Confrontation Clause of the Sixth Amendment and the evidentiary rule against hearsay would make a prosecution of Michael Karkoc a non-starter.

The law under which jurisdiction over Michael Karkoc could be asserted — the “holder of a German office” stuff — was created in Germany long after the war. Making something retroactively criminal is called an ex post facto law, and that’s prohibited by the Constitution (Article 1, Section 9, Clause 3) in the U.S., too. The framers of the Constitution were justifiably leery of ex post facto laws, because they have political prosecutions written all over them.

That the wooly-headed German prosecutor thinks he has something here is truly Kafkaesque. But, my friends, George Orwell gets a lick in here, too.

Being guilty of being the servant of a “world view” (without competent proof you actually did anything criminal) is crimethink from Orwell’s 1984.

Let’s consider other people who might be considered servants of a world view. Hmmmm. How about Christians? And having a Jewish “world view” is pretty dangerous in parts of the Middle East, isn’t it?

Shipping 95 year-old Michael Karkoc off to be tried on the basis of this ephemera would definitely violate another world view, the American world view of the constitutional rights of the accused.

Let’s just hope the Justice Department remembers that.

Update:

In U.S. and international law, the crime of conspiracy to commit a war crime does not exist. The discussion at the link is about the “charge sheet” preferred against a Guantanamo detainee that was the genesis of  Hamdan v. Rumsfeld. The author is David Scheffer, a former ambassador for war crimes, and a negotiator for the formation of the International Criminal Court, said this:

As the chief U.S. negotiator during the United Nations talks for the International Criminal Court (ICC), I had the opportunity to address the conspiracy issue very directly when the general principles of law on individual criminal responsibility were being considered over many drafting sessions. Some common law countries felt comfortable pursuing theories of conspiracy because such a crime exists in their domestic law (albeit not for the law of war). Civil law countries do not embrace the crime of conspiracy, however, and require evidence that the defendant acted with respect to the underlying crime.

Germany is a civil law country, which makes its adoption of the law referred to above all the more anomalous, and contrary to the norms of international law.

The German statute is the equivalent of a law making conspiracy a war crime; it actually goes beyond that. It criminalizes mere membership in an organization or unit.

If that was the law in the United States, every commanding officer would be criminally responsible for every war crime committed by every soldier. Gen. Westmoreland would have shared the dock with Lt. Calley.

It would be interesting to study the pathology of a law that makes someone guilty for being a servant of a worldview and makes that conclusion with no competent evidence. I suspect that it is a combination of national guilt and political zealotry in certain quarters.

Further Update: Although I have confined myself to the laughable weakness in the legal case against Michael Karkoc, you ought to read about the underlying story, as told by Mr. Karkoc’s son, Andriy.