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The Demjanjuk Case
John (Ivan) Demjanjuk was born in 1920 in the Ukraine, a part of the Soviet Union. There Demjanjuk, who had little formal education, worked on a collective farm. Conscripted into the Soviet army in 1940, he was wounded during the fighting that followed the German invasion of the Soviet Union on 22 June 1941. After recovering from his wounds, he continued to serve as a soldier in the Soviet army until his capture by the Germans during the battle of Kerch in the Crimea in May 1942. Thereafter he served as a volunteer SS auxiliary for the Germans. Trained in Trawniki, Poland, he was posted to the extermination camp Treblinka and remained there until the dissolution of the camp in September 1943. After service in Germany and Austria from 1943 to 1945, Demjanjuk found himself in the United States zone of occupation and, after residence in several camps, "arrived in Regensburg, Germany, where he drove a truck in an American Army motor pool from 1947-1949."71
After the enactment of the 1948 Displaced Persons Act (DPA), Demjanjuk obtained DP status and in 1952 immigrated to the United States, although the DPA specifically excluded from the United States any person who "assisted the enemy in persecuting civil populations"72 or ". . . who assisted in the persecution of any person because of race, religion, or national origin.73 When he applied for DP status and an American visa, Demjanjuk did not mention the Trawniki training camp; he also did not reveal that he had served at the Treblinka killing center where nearly a million human beings were murdered by about 20-30 Germans and about 120 Ukrainian armed guards. Nor did he mention either place when he obtained his U.S. citizenship in 1958.
In the denaturalization proceedings against him, instituted in 1977, Demjanjuk denied ever having been at either camp. Federal District Judge Frank Battisti, however, found that he was the Ukrainian guard, known to the Jewish prisoners as "Ivan the Terrible," who had operated the diesel motor that fed the lethal Treblinka chambers and who had brutalized and killed prisoners.74 In 1981 the district court denaturalized him on the grounds that he had illegally procured his citizenship by willful concealment and misrepresentation of the material fact of his Treblinka service. Demjanjuk's wartime activities as an SS auxiliary in Trawniki and Treblinka had rendered him ineligible for a valid visa and, since one of the requirements of naturalization is legal residence in the United States, he had failed to meet a statutory requirement for citizenship.
When Demjanjuk was forced to surrender his certificate of naturalization in 1981, he not only ceased to be a U.S. citizen, he became an illegal alien. As Judge Battisti had found in the denaturalization proceedings, Demjanjuk had been ineligible to enter under the DPA, had obtained a visa only because he had concealed his wartime activities, and was therefore in the country illegally.
The Government instituted deportation proceedings against Demjanjuk in December 1982. In April 1983 the deportation hearing began in immigration court in Cleveland with the Government presenting its case. In October 1983 and January 1984 Demjanjuk presented his arguments before the immigration judge. In May 1984 Immigration Judge Adolph E. Angellilli ordered him deported to the Soviet Union, but also offered him the option of voluntary departure.75
Within a month, Demjanjuk filed a notice of appeal to the Board of Immigration Appeals (BIA). In December, the BIA heard his appeal and in February 1985 dismissed it, upholding the immigration court's order of deportation but reversing the grant of voluntary departure; the BIA thus ordered Demjanjuk deported to the Soviet Union.76
About a year after the Government commenced deportation proceedings against Demjanjuk, Israel also instituted legal proceedings against him. In October 1983 Israel issued an arrest warrant charging him with a violation of its 1950 Nazi and Nazi Collaborators (Punishment) Law. This statute, which had been applied in the case of Adolf Eichmann, makes Crimes against the Jewish People, Crimes against Humanity, and War Crimes during World War II punishable under Israeli law. Within two weeks after this warrant was issued, the Israeli Embassy in Washington submitted an extradition request for Demjanjuk to the Secretary of State, who certified that the 1963 extradition treaty with Israel was in full force and effect and forwarded the request to the Department of Justice.
On 18 November 1983 federal authorities in Cleveland arrested Demjanjuk, and the Government, on behalf of Israel, filed a complaint and the necessary documents with Judge Frank Battisti of the U.S. District Court for the Northern District of Ohio, the same judge who had presided over Demjanjuk's denaturalization trial. The complaint stated that Demjanjuk had been charged with "the crimes of murder, malicious wounding and inflicting grievous bodily harm," all of which were extraditable offenses under the 1963 treaty with Israel, and asked the court for a certificate of extraditability.
By late 1983 Demjanjuk was thus facing both deportation and extradition hearings-if deported, he would be sent to the Soviet Union; if extradited, he would be surrendered to Israel. Dernjanjuk sought to stave off the extradition hearings on the grounds that deportation proceedings were pending against him, but in July 1984 the district court held that the two processes are independent and scheduled extradition hearings for early 1985.
Because the Government had already compiled extensive documentary evidence and eyewitness testimony against Dernjanjuk for his denaturalization and deportation trials, and because Israel had likewise compiled a record of incriminating evidence for its warrant, the Government had an abundance of evidence from which to choose in seeking to meet the relatively lenient probable cause standard in extradition cases. Eyewitness affidavits comprised the majority of the evidence submitted by the Government and used by Judge Battisti in determining whether there was probable cause to believe that Demjanjuk was the person sought by Israel and that he had committed the crimes with which he was charged.
By early 1985, Judge Battisti had rejected Demjanjuk's preliminary arguments that the court lacked jurisdiction and that no valid extradition treaty existed. He had studied the briefs submitted by the litigants and the amicus brief he had requested from the International Human Rights Law Group,77 heard oral arguments from both sides, and was ready to rule on Demjanjuk's basic objections and to render a decision on extraditability.78
On 12 March 1985 the hearing focused on Demjanjuk's three major defense arguments: he was not the person named in the complaint; the charges were not extraditable; and Israel lacked jurisdiction. On 15 April 1985 Judge Battisti answered these arguments.
On identification, Demjanjuk argued that he was not the person identified as "Ivan the Terrible." Judge Battisti found this argument without merit. He ruled that the affidavits of Treblinka survivors identifying Demjanjuk as the guard known as "Ivan the Terrible" were sufficient to establish probable cause.79
On the extraditability of the charges, Demjanjuk argued that because the extradition treaty with Israel did not list "war crimes, genocide, or crimes against the Jewish people" as extraditable offenses, the crimes charged against him were not extraditable because they did not "conform to the letter and intent" of the treaty.80 Judge Battisti rejected this ingenuous construction. The Government sought extradition for "murder, manslaughter, malicious wounding, and inflicting grievous harm." Not only does the treaty specifically list these as extraditable offenses, but each is an offense under the law of the United States and of its 50 states. Although the court held that Demjanjuk's extradition for the crimes of manslaughter, malicious wounding, and inflicting grievous harm was barred by the statute of limitations,81 no such limitation attached to murder.82 And the court would not accept Demjanjuk's "literal and technical reading of the treaty"; to do so would be to accept the "absurdity" that "one who kills an individual is extraditable but one who kills many is not extraditable.83 The court found "no reason to presume that the treaty drafters intended to extradite for 'murder' and not for 'mass murder'."84
On jurisdiction, Judge Battisti invoked the international law concept known as the "universal jurisdiction" or "universality" principle.85 Demjanjuk argued that Israel did not have jurisdiction because he was neither a citizen nor a resident of Israel and because the crimes had been committed in Poland and not in Israel, a country that had not even existed at the time the crimes took place in 1942 and 1943. Battisti rejected this argument. Although most countries rest jurisdiction over most crimes on the territorial principle-that is crimes committed within their geographic boundaries-each nation has the authority under international law to punish certain crimes committed outside their territories. Thus piracy on the high seas would be unpunishable were international law to limit a nation's jurisdiction over crimes to those committed on its own territory. Piracy is therefore often cited as the preeminent example of jurisdictional universality, though the principle is not limited to that crime; it extends to those offenses that make the perpetrators "common enemies of all mankind" and as such subject to the jurisdiction of any nation that wishes to proceed against such criminals because all nations "have an equal interest in their apprehension and punishment.86
Judge Battisti held that crimes against humanity and war crimes could legitimately join piracy, and also the slave trade and hijacking of aircraft, as crimes subject to the universality principle. Further, after Worlld War II the Allies tried Nazi war criminals without following the territorial principle; instead, they considered those who committed such crimes "common enemies of all mankind." And the court also noted that the United Nations had in various ways acknowledged that crimes against peace, crimes against humanity, and genocide were international crimes.87 As Israel had chosen to punish such crimes under its domestic law and because the unversality principle of international law permitted it to do so, Judge Battisti held that Israel had jurisdiction to try Demjanjuk under its Nazi and Nazi Collaborators (Punishment) Law. The fact that the United States has not chosen to exercise domestic jurisdiction over such crimes is irrelevant to the question of Israeli jurisdiction. Battisti added that Israel might also exercise jurisdiction under other principles of international law, but since its jurisdiction was settled under the universality principle, there was no need for the court to find further grounds to justify Israeli jurisdiction.88
After disposing of the defense arguments concerning identity, extraditability, and jurisdiction, the district court turned to the major issue before it: did the evidence establish probable cause to believe that Demjanjuk had committed the crimes with which he was charged. Reiterating the principle that "the Government and the requesting country are not required to show actual guilt,"89 Judge Battisti cited the affidavits of Treblinka survivors as eyewitnesses, some of which he had also used in deciding the issue of identity.
The first eyewitness identified Demjanjuk as the Treblinka guard who herded prisoners into the gas chambers and "returned to the room where the motor was, and ... activated the motor,"90 leading Judge Battisti to observe that if this testimony is credible "there is probable cause to believe [Demjanjuk] committed murder since: (i) these chambers were specifically created for the purpose of killing; and (ii) death by asphyxiation is a foreseeable consequence of the inhalation of carbon monoxide."91
A second eyewitness had observed Demjanjuk "entering and operating the engine room" and had on one occasion also seen how Demjanjuk hanged three prisoners after torturing them.92 A third eyewitness had seen Demjanjuk "convey people into the gas chambers" and had also seen him "[shoot] people dead."93
Basing his decision on these three eyewitness testimonies, Judge Battisti ruled:
It is unnecessary to pass on every shred of evidence detailing eyewitness accounts of acts allegedly committed.... It is enough in this case, after examining the statements of just three witnesses to find probable cause ... [that Demjanjuk] while serving as a guard at the Treblinka camp in 1942-43 committed murders of: (i) uncounted numbers of prisoners ... who died of asphyxiation in the gas chambers which [he] operated; (ii) [one person] who may have bled to death or been shot after his ear was cut off by [Demjanjuk]; (iii) [one person] who died from blows to the head ... ; (iv) [three persons] who were hung by [Demjanjuk] . . . ; (v) the carrier of corpses who was shot by [Demjanjuk] .... In sum, the Court finds ... that probable cause exists to believe [Demjanjuk] committed multiple acts of murder and that he may be extradited to Israel for those murders. 94Although the court had found probable cause to believe that Demianjuk committed the crimes charged in the Israeli warrant, he might nonetheless escape extradition if, as he argued, the Nazi and Nazi Collaborators statute was ex post facto; if the crimes charged under Israeli law were not also crimes under U.S. law; or if a trial in Israel on these charges would constitute double jeopardy. The court rejected all three defense objections.
Judge Battisti rejected the ex post facto defense on the grounds that Israel did not transform an act that was legal when committed into a crime; it simply provided "a new forum for conduct previously recognized as criminal."95 Not only was murder a crime under the 1936 criminal code in effect in the Palestine Mandate during World War II, but "murder of defenseless civilians during wartime was illegal under international law."96 Likewise, Judge Battisti rejected the argument that the crimes charged in Israel were not crimes in the United States. Because murder is a crime not only in Israel but also in the United States and each of its 50 states, the treaty requirement of dual criminality-that the act for which the fugitive is sought be a crime in both countries-had been satisfied.97 Finally, Judge Battisti rejected the double jeopardy defense because Demjanjuk had not yet been tried for the crimes committed at Treblinka: both denaturalization and deportation trials are civil, not criminal, Proceedings.98
Demjanjuk further claimed exemption from extradition because the acts with which he was charged "are clearly political in character." He argued that "at the time of their alleged commission, there was a war and these alleged acts, no matter how barbaric or horrifying, were incidental to the Nazi war effort."99 It is not clear from the wording of this defense whether Demjanjuk considers as "alleged" all crimes committed at Treblinka, or whether he is only referring to his own participation. At any rate, the court also rejected this defense.
The political exception can apply only if "there was a violent political disturbance, such as a war, revolution or rebellion at the time and place of the alleged act," and if at the same time the "acts charged were recognizably incidental to the disturbance.100 Thus there has to be a "rational nexus" between the crime and the political upheaval. Judge Battisti found "frivolous and offensive" this claim by Demjanjuk "that the killing of defenseless civilians at Treblinka was part of the Nazi war effort, and therefore ... political in character."101
Battisti noted that there had never been even an allegation that those killed at Treblinka were engaged in a political struggle for power or had tried to overthrow the government by force or violence. The victims were simply "members of an innocent civilian population."102 Battisti relied upon an extradition opinion, rendered by a federal district judge in New York, that concluded that "no act [can] be regarded as political where the nature of the act is such as to be violative of international standards of civilized conduct,"103 and he echoed it by holding that the acts with which Demjanjuk was charged "are inconsistent with international standards of civilized conduct." And in conclusion Battisti stated:
The murdering of numerous civilians while a guard in a Nazi concentration camp, as part of a larger "Final Solution" to exterminate religious or ethnic groups, is not a crime of a "political character" and thus is not covered by the political offense exception to extradition.104On 15 April 1985 Judge Battisti certified Demjanjuk's extraditability to the Secretary of State but stayed his surrender to Israel until 1 May to permit him "the opportunity to apply for whatever relief he deems appropriate."105
On 25 April 1985 Demjanjuk petitioned the U.S. District Court for the Northern District of Ohio for a writ of habeas corpus, contending that he was being unlawfully detained in violation of his rights under the Constitution, laws, and treaties of the United States. His case was assigned to Judge Frank Battisti. Just as he had protested the assignment of the extradition complaint to Judge Battisti because that judge had heard his denaturalization case, so now he asked Battisti to recuse or disqualify himself from the habeas corpus hearing because he had presided over the other two proceedings. The judge refused.106 Demjanjuk's extradition proceedings had been assigned to Battisti precisely because he had presided over the earlier denaturalization proceedings; the local rules governing the assignment of cases in the Northern district of Ohio specify that "cases related to cases already assigned to a judge ... shall be assigned or transferred to said judge."107 Similarly, the habeas corpus case had been assigned to Judge Battisti because he had presided over the extradition hearing; the local rule specifies that "subsequent proceedings . . . shall be assigned to the judge who heard the original case.108
Because the scope of a habeas corpus review of a decision of extraditability is, as we have seen, severely limited, and because Demjanjuk supported his habeas corpus petition only with arguments already examined and rejected by Judge Battisti in the extradition hearing, the district court denied his petition.109 Demjanjuk appealed this denial to the U.S. Court of Appeals for the Sixth Circuit, basing his appeal on a ". . . somewhat confusing melange of arguments" challenging the sufficiency of the evidence used against him and the refusal of Judge Battisti to recuse himself, as well as a variety of jurisdictional objections.110 The court of appeals upheld the district court's opinion in all respects.111
Rejecting Demjanjuk's challenge to the admissibility and sufficiency of the evidence against him, the court of appeals held that the eyewitness testimony used by the district court "surely ... satisfied" the lenient extradition standard of ". . . whether there was any evidence warranting the finding that there was reasonable grounds to believe the accused guilty."112 Further, because "a judge's alleged bias must emanate from some 'extrajudicial source' rather than from participation in judicial proceedings," it follows that "recusal is not required of a judge assigned to consider habeas corpus action following conviction at a trial over which the judge presided."113 The court of appeals therefore found it appropriate for the habeas corpus case to have been assigned to Judge Battisti. The court of appeals also rejected Demjanjuk's argument that, as the court put it, ". . . murdering thousands of Jews and non- Jews is not covered by the treaty designation of 'murder.114 Instead, it held, as had Battisti, that "murder includes the mass murder of Jews";115 murder is criminal both in Israel and throughout the United States,116 and thus satisfies the dual criminality rule.
Concerning the question "whether the murder of Jews in a Nazi extermination camp in Poland during the 1939-1945 war can be considered, for purposes of extradition, crimes within the jurisdiction of the State of Israel,"117 the court of appeals agreed with the lower court that "jurisdiction... does not refer solely to territorial jurisdiction" and that Israel's Nazi and Nazi Collaborators (Punishment) Law was a legitimate exercise of "universal jurisdiction" because the crimes therein proscribed were "universally recognized and condemned by the community of nations."118
On 31 October 1985 the Court of Appeals for the Sixth Circuit thus upheld Judge Battisti's denial of Demjanjuk's petition for a writ of habeas corpus. Demjanjuk then sought review by the United States Supreme Court, but on 24 February 1986 it refused to hear his petition.119
Demjanjuk also tried the unusual tactic of seeking relief from another court of appeals. He petitioned the U.S. Court of Appeals of the District of Columbia Circuit for a writ of habeas corpus and a stay of execution of the extradition warrant.120 After he had been certified as extraditable, Demjanjuk had been placed in the custody of U.S. marshals, who had confined him in an undisclosed location pending surrender to Israel. Demjanjuk was therefore technically in the custody of the Attorney General and, because every court of appeals judge has the authority to issue a writ of habeas corpus to a petitioner's immediate custodian or to transfer the petition to the appropriate district judge, the court of appeals in the District of Columbia could order the Attorney General to release Demjanjuk if he were being held unlawfully.
Circuit Judge Robert Bork refused to transfer the petition to a district court for a hearing, "because it is absolutely clear from the application that the applicant is not entitled to an award of the writ and a hearing is therefore not required. . . ."121 He did, however, decide that it was "appropriate ... to treat the Attorney General ... as the custodian"122 and briefly to consider Demjanjuk's argument.
Demjanjuk's substantive argument in support of his petition for release was as novel as had been his decision to petition the Court of Appeals for the District of Columbia after he had been refused relief by the Court of Appeals for the Sixth Circuit. He argued that the recent Senate ratification of the International Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention)123 constituted an amendment to the extradition treaty with Israel under which his extradition had been certified; the extradition decision was thus voided by the Genocide Convention which, Demjanjuk argued, provided for more restrictive jurisdictional requirements and thus divested Israel of jurisdiction to try him for genocide. This argument was especially interesting, because Demjanjuk had earlier sought to avoid extradition by claiming that the acts with which he was charged were "clearly political";124 in a complete reversal, he now fought extradition on the basis of a convention whose signatories had agreed not to treat genocide as a political offense.
The court of appeals rejected this argument on both technical and substantive grounds. Judge Bork held that because the Genocide Convention was not yet in effect (enabling legislation would first have to be enacted by the Congress), it could not be used to challenge Judge Battisti's certification of extraditability. Further, Judge Bork held that even if the Convention were in effect, it would be "irrelevant."125 Although Israel's charges against Demjanjuk-murdering tens of thousands of Jews with the intention of destroying the Jewish people l26-"would certainly appear sufficient to support a charge of genocide,"127 the Government had not charged nor had the court certified extraditability for genocide. The Government had requested extradition for murder, manslaughter, and malicious wounding, and the district court had certified extraditability for murder, a crime under both Israeli and American law. Because murder and not genocide was the basis for the charges against Demjanjuk, his extradition was unaffected by the Convention.
In rejecting Demjanjuk's request for a stay of the execution of extradition, Judge Bork noted that such an order would be warranted only upon a "strong Showing"128 that Demjanjuk could convince a court that he was not extraditable. Demjanjuk had "fail[ed] to demonstrate a likelihood of success on the merits."129 The court concluded its 27 February 1986 opinion by stating:
Petitioner has failed to demonstrate that he is entitled to the relief requested. The Genocide Convention is not in effect, and were it in effect, it would be irrelevant to the extradition in question. Petitioner's request for a writ of habeas corpus and for a hearing and stay are, therefore, denied.130
By 27 February 1986 Demjanjuk had thus exhausted all avenues of judicial relief, and on that day U.S. marshals took him to Israel where they surrendered him to the proper authorities; there he was confined in the maximum security prison at Ramle.131
On 29 September 1986 the State Attorney's Office in the Israeli Ministry of Justice filed an indictment in the district Court of Jerusalem against Ivan (John), son of Nicholai, Demjanjuk. He was charged under the Nazi and Nazi Collaborators (Punishment) Law with having committed crimes against the Jewish people, crimes against humanity, and war crimes. In addition, he was charged under Section 300 of the Israeli Penal Code with having committed crimes against persecuted persons; he did so by causing their death with "premeditated intent." If he had "carried out those acts in Israel [sic] territory, [he] would have been guilty of offenses of murder."132
72. This is one category of persons ineligible for refugee or DP status under the constitution of the International Refugee Organization (IRO) and incorporated into Sec. 2 of the DPA: 62 Stat. 1009 (1948).
77. In re Demjanjuk, Brief of Amicus Curiae, The International Human Rights Law Group (Washington, D.C., filed 10 Apr. 1984), 603 F. Supp. 544 (N.D. Ohio 1985), 612 F. Supp. 544 (N.D. Ohio 1985), Misc. No. 83-349.
78. In re Demjanjuk, 603 F. Supp. 1463 (N.D. Ohio, 6 Dec. 1984); Supplemental Order, 11 Dec. 1984; and 603 F. Supp. 1468 (N.D. Ohio 21 Feb. 1985), Misc. No. 83-349; On Parameters of extradition hearing 5 Mar. 1985; On jurisdiction 8 Mar. 1985. On 11 Dec. 1984 and 21 Feb. 1985, the court rejected various objections to its subject matter jurisdiction as, for example, the curious contention that a civilian court could not hear an extradition request for crimes committed during wartime. In re Demjanjuk, 603 F. Supp. 1463 (N.D. Ohio 11 Dec. 1984) and 603 F. Supp. 1468 (N.D. Ohio 21 Feb. 1985).
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