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In the late 1970s the United States ceased to be a refuge for Nazi criminals seeking to avoid prosecution for the crimes they had committed during Worlld War II. Although the laws of the United States had always prohibited the immigration of those who had participated in the crimes of the Nazi regime, large numbers entered the country by concealing or falsifying their past and, even if discovered, easily avoided expulsion thereafter.1 All this changed in the late 1970s when public concern and congressional action moved the executive to proceed against these criminals. The courts revoked citizenship fraudulently obtained, and these denaturalized criminals, together with others who had retained their status as alien residents, faced deportation to the countries where they had committed their crimes.2 But deportation had never been the only means to rid the United States of Nazi criminals; they could also be extradited. In deportation, the Government of the United States initiates the proceedings and, if successful, expels the criminal. In extradition, a foreign nation initiates the proceedings and, if successful, has the criminal surrendered to it.
Unless the law is changed to authorize trial and punishment of Nazi criminals by American courts, extradition is probably the most effective method of assuring that these criminals will be held accountable. An extradition request usually indicates a foreign government's serious intent to bring the fugitive to trial. In contrast, a deported criminal may or may not be required to answer for his crimes in the country to which he is deported. But extradition cannot be initiated by the United States; unless a foreign government requests extradition, the U.S. Government can only use deportation to rid the country of the unwanted criminal.
The extradition process is governed by treaty and by statute. While the United States does not have extradition treaties with every nation-for example, the Soviet Union is a noteworthy exceptionlarge numbers of such treaties, negotiated by the President and ratified by the Senate, specify in detail the conditions governing the surrender, and the procedures to be followed by American authorities before a fugitive can be delivered under one of these treaties are precisely delineated in a congressional statute.3
Briefly, the formal procedure requires a foreign government to request under the treaty the surrender of a fugitive facing a criminal charge in that country. The request for extradition is submitted to the Secretary of State through normal diplomatic channels. The request must identify the fugitive, specify the crime, and provide sufficient evidence to constitute probable cause. When a request for extradition is presented, the Secretary of State certifies that an extradition treaty is in force and the Department of State transmits the necessary documents to the Department of Justice.
In extradition proceedings the U.S. Government acts on behalf of a foreign government; it serves as the attorney presenting the evidence the courts need to rule on the surrender of the fugitive. Thus, after the Department of Justice receives the extradition request from the Department of State, the U.S. Attorney for the district where the fugitive resides files a complaint with and obtains an arrest warrant from the U.S. district court. A judge of this court or a magistrate designated by the court hears the case and decides whether the fugitive can be extradited. If the judge or magistrate rules against the fugitive, he issues a certificate of extraditability and transmits it, together with the record of the proceedings, to the Secretary of State, who at his discretion surrenders the fugitive to agents of the foreign government. Thus extraditability is decided by a federal court; extradition is decided by the Secretary of State.
In extradition proceedings the federal courts are not concerned with questions of guilt or innocence. They only decide whether a treaty obligation exists to surrender the fugitive for the specific crime charged in the extradition request. No foreign government is obliged to try its case in an American court; it is only obliged to present enough evidence to establish probable cause.
In extradition cases, as in those involving denaturalization and deportation, the case against Nazi criminals is conducted by the Government of the United States. But the burden of proof required is substantially different. In denaturalization and deportation proceedings, the Government's evidence must be "clear, convincing, and unequivocal." Although denaturalization is a civil trial and deportation an administrative procedure, the burden of proof required in both approaches the stringent "beyond a reasonable doubt" requirement of criminal trials.
In contrast, the Government bears no such heavy burden in extradition proceedings, where the role of the court is circumscribed and the rights of the defendant limited. Extradition proceedings thus resemble preliminary hearings to determine whether probable cause exists to bind the defendant over for trial. In extradition, the Government must show and the court must find only 1) that criminal charges have been filed against the fugitive in the country requesting extradition; 2) that these charges referred to a crime specified in the treaty; 3) that the fugitive sought is indeed the criminal charged; and 4) that there is probable cause to believe that the fugitive committed the crime.
While the task for the prosecution is easier, the defense faces greater obstacles. The defendant can mount only a limited defense: he can contest his identification as a fugitive, challenge the validity of the treaty, argue that the crime is not an extraditable offense, maintain that the crime is an exempt political transgression, but he cannot base his defense on the contention that he is innocent. The defense is equally limited in its right of appeal. There is no appeal from the court's decision of extraditability; however, the defendant can petition for a writ of habeas corpus-a writ of ancient Anglo-Saxon origin prohibiting unlawful detention-and both district and appeal courts can hear this application. A writ of habeas corpus is issued to the custodian of a prisoner-typically a wardendirecting that official to produce the prisoner in court and to prove that the prisoner is being legally detained; if the official-represented in court by the Government-cannot so prove, the court orders immediate release. But the habeas corpus court in extradition proceedings can only determine 1) whether the court had jurisdiction; 2) whether the charge is covered by the treaty; and 3) whether any evidence supports probable cause.
Hermine Braunsteiner-Ryan was the first Nazi criminal extradited. She was born Hermine Braunsteiner 4 in Vienna in 1919 as the youngest child of a working class family; the father worked as a chauffeur for a brewery and the mother added to the family income by taking in wash. After attending school for eight years, she found work as a maid; she wanted to become a nurse, but financial constraints made this impossible. In 1937 she moved to England to work in the household of an American engineer but left again in 1938; the incorporation of Austria had transformed her into a German citizen, and as such she felt uncomfortable abroad as war approached. After her return to Vienna, she attempted to improve her condition by moving to Germany proper, and late in 1938 accepted an unskilled job at a munitions factory near Berlin. Her landlord, a policeman, advised her to apply for the job of supervising prisoners in a concentration camp. She applied in the women's camp Ravensbriick nearby, and assumed the duties of Aufseherin (female guard) on 15 August 1939, two weeks before the start of World War II.
Dressed in SS uniforms without rank, these female guards served under the command of male camp officers and, unlike their male colleagues, served in the SS only as contractual workers; the elitist military structure of Himmler's troops did not permit regular female members. These guards had absolute power over the female prison- ers, but in relation to their male colleagues they occupied a dependent status.5
Braunsteiner trained at Ravensbrdck under the supervising Aufseherin Maria Mandel (executed by the Poles after the war for crimes committed in Auschwitz), but differences with her superior led her to request a transfer. In October 1942 Braunsteiner was posted to a concentration camp in Poland; she assumed her new duties in the notorious Lublin camp, located in the suburb of Maidanek. Unlike Ravensbriick, this camp served as both concentration and extermination camp.6 In January 1944 she was posted back to Ravensbrdck and appointed chief female supervisor of a small camp called Genthin, a subsidiary camp first of Ravensbriick and then of Sachsenhausen. She remained there until the end of the war and then lost herself amongst the general population of defeated Germany. Braunsteiner returned to Austria in the fall of 1945. She was arrested and interned from July 1946 until April 1947 by the British authorities; in November 1949 an Austrian court in Vienna sentenced her to three years in jail for mistreating prisoners in Ravensbrdck.
After her release from jail in 1950, she performed unskilled labor in hotels and restaurants.
During these years Braunsteiner met Russell Ryan, an American soldier from Queens, New York, and became his fianc6e. She emigrated to Canada in 1958, married Ryan, and in April 1959 obtained an immigration visa from the U.S. Consul General in Halifax, Nova Scotia, and shortly thereafter entered the United States. In April 1962 Hermine Braunsteiner, now using the name of Ryan, filed for American citizenship. She concealed-in her apphcation for a visa and in her application for citizenship-that she had served in a concentration camp and that she had been convicted by an Austrian court. Moreover, she declared under oath that she had never "been arrested, charged, convicted, fined, or imprisoned for breaking or violating any law …."7
On 22 August 1968 the Government filed a complaint charging that she had fraudulently obtained her American citizenship through misrepresentation and concealment and asked that her certificate of naturalization be cancelled. Ryan denied these allegations. Nonetheless, she agreed to a consent judgment of denaturalization to avoid deportation. In 1971 this consent judgment was signed and entered and she surrendered her certificate of naturalization. In 1973 the Federal Republic of Germany submitted a request to the U.S. Secretary of State for the extradition of Ryan. A German court had issued a bench warrant charging that Ryan had committed murder as an SS guard in the Lublin-Maidanek concentration camp. Before the U.S. Government could bring this extradition request to trial, Ryan attempted to forestall these proceedings. Because the American-German extradition treaty prohibited the extradition of citizens, she filed a motion with the U.S. District Court for the Eastern District of New York to vacate the consent judgment under which she had surrendered her certificate of naturalization. This tactic failed as Chief Judge Jacob Mischler granted the Government's motion to dismiss and denied Ryan's claim that she was still an American citizen.8
At her extradition proceedings Ryan presented old and new defense arguments: her reasserted claim of American citizenship; her assertion that she had not fled from Germany to avoid prosecution; her claim that Maidanek was not located within the territory of West Germany; and her contention that the crimes charged were political offenses. After rejecting all other assertions immediately, Mischler considered only two defense claims: the contention that there was no probable cause and the argument that the warrant placed Braunsteiner-Ryan in double jeopardy. In the end Judge Mischler also rejected these arguments. Citing German evidence refuting Ryan's claim that there was no witness testimony to prove her involvement in crimes in Maidanek, Judge Mischler ruled that there was probable cause. Ryan's double jeopardy argument appeared more troubling because she could point to her Austrian conviction; but there she had been convicted for her crimes in Ravensbrfick and not for her crimes in Maidanek.9 Thus Judge Mischler rejected her double jeopardy argument, because the earlier trial had been in Austria and not Germany, the charges had differed from those currently issued, and also because the protection of the American Bill of Rights has no extraterritorial dimensions.
On 1 May 1973 Judge Mischler therefore certified to the Secretary of State that there was sufficient evidence to sustain the charges brought by the Federal Republic of Germany and that the offenses were extraditable.10 On 7 August 1973 Hermine Braunsteiner-Ryan was extradited to the Federal Republic of Germany. There she was jailed to stand trial for her crimes in Maidanek. In Germany, Braunsteiner-Ryan challenged the jurisdiction of the German court. She argued that the German court had no jurisdiction because she was a native Austrian and the crimes had been committed outside the borders of Germany. The court rejected this defense. Under German law citizenship at the time of the crime determines jurisdiction. Braunsteiner-Ryan had become a German citizen in 1938 when Austria was incorporated into the German Reich and had retained this citizenship until 1945. In addition, she had occupied an official government position and had acted in the name of the German Reich; this would have been enough to establish jurisdiction even if she had not been a German citizen. And because she had been a German citizen acting for the German government, German courts have jurisdiction under German law even if the crimes were committed outside the borders of Germany.11
The so-called Maidanek trial of Hermann Hackmann and nine other defendants before the district court in Diisseldorf lasted from 26 November 1975 until 30 June 1981 and thus became the longest trial in the legal history of Germany. The Diisseldorf court convicted Braunsteiner-Ryan of the murder-committed in collusion with others-of a total number of at least 100 human beings and sentenced her to life imprisonment.12
Andrija Artukovic, the highest ranking Nazi criminal to find refuge in the United States, was born in 1899 in Austrian Herzegovina, which after World War I formed part of Yugoslavia. Trained as a lawyer, he participated in the prewar politics of Yugoslavia as a member of the extremist Ustasha, whose aim was the creation of an independent Croatia and thus the destruction of a unified Yugoslavia. During World War II,13 when the Ustasha assumed power in the Nazi puppet state of Croatia, Artukovic served as Minister of Internal Affairs. As such he was in charge of the police and paramilitary units that imposed the Ustasha system of terror. These forces established death camps where they murdered large numbers of men, women, and children including Serbs, Jews, Gypsies, and Moslems. As the second highest ranking member of the Ustasha regime and as the man in charge of internal security, Artukovic was implicated in these crimes.
At the end of the war Artukovic fled from justice in postwar Yugoslavia. He first moved to that part of Austria occupied by the Western Allies, then illegally entered Switzerland, and finally made his way to Ireland. Traveling without a passport and using the false name of Alois Anich, he used an Irish Certificate of Identity to obtain a non-immigrant visitor's visa from the American consul in Dublin. On 16 July 1948 he thus illegally entered the United States as a "temporary visitor for pleasure." When his visa and two extensions expired in April 1949 and his application for permanent residence under the Displaced Persons Act of 1948 was denied, he nonetheless remained in the United States, along with his wife and his foreign- born and American-born children.
Protracted deportation proceedings against Artukovic began in the early 1950s. To summarize briefly, in May 1951 the Immigration and Naturalization Service (INS) ordered him to show cause why he should not be deported. In June 1952 an immigration hearing officer ordered him deported on the grounds that he had overstayed his visitor's visa and had entered the country illegally without valid passport or entry documents. 14 He sought a suspension of this order from the Board of Immigration Appeals (BIA) on the grounds that his deportation would impose economic hardships on the daughter born during his illegal sojourn in the United States. In April 1953 the BIA upheld the deportation order in an opinion citing his prewar role in the "extremist, nationalist Ustasha," his arrest in connection with the assassination of King Alexander I of Yugoslavia in 1934, and his prominent role in the wartime Croatian "administration ... solely responsible for the conditions that existed in the concentration camps of Croatia, for massacres of Serbs, Jews and Moslems, and for the promulgation of laws setting up a government following the pattern of a dictator state."15 The BIA found it "difficult ... to think of any one man other than [the head of the Ustasha and chief of state Ante] Pavelic who could have been more responsible for the events occurring in Croatia during the period than was [Artukovicl]."16
Artukovic continued to reside in the United States. Yugoslavia did attempt to extradite him "for murder and participation in murder" but, as we shall see, Artukovic avoided extradition because the evidence presented by a communist state did not convince an American judge,17 and the INS did not move to deport him while extradition proceedings were pending. Further, in 1956 the INS notified Artukovic of his right to seek a suspension of deportation as authorized by the Immigration and Nationality Act (INA)18 if he feared "physical persecution" were he to be returned to Yugoslavia. He did so. In May 1959 an INS Special Inquiry Officer [now called an immigration judge] found that Artukovic's fears of physical persecution if he were returned to Yugoslavia were well founded and suspended his deportation "subject to revocation at any time.19 Throughout the 1960s and into the early 1970s, Artukovic continued to live in California with his family, undisturbed by threats of expulsion. Even Yugoslavia, which had vigorously pursued his extradition in the 1950s, gave up. But the waning of anticommunism and the growing concern about Nazi criminals made Artukovic's expulsion a more realistic prospect in the late 1970s.
In April 1977 the INS notified Artukovic that his 18-year-old stay-of-deportation order would be suspended unless he could justify its continuation. Artukovic sought an injunction from the U.S. District Court for the Central District of California. The district court did grant an injunction prohibiting the Attorney General and the INS from revoking the stay of deportation because the matter should rest solely with the semi-independent INS Special Inquiry Officer.20 But before any further proceedings could take place, events in the Congress and in the Department of Justice intervened.
In 1978 Congress adopted an amendment to the INA, proposed by Representative Elizabeth Holtzman, that was especially designed to deal with the problem of Nazi criminals in the United States. Among other provisions, the Holtzman amendment specifically denied to the Attorney General the authority to suspend the deportation of any person who "under the direction of or in association with" Nazi Germany had "ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.21 In 1959 a previous Attorney General had used the discretion conferred upon him under the old INA to suspend Artukovic's deportation order because he might suffer "physical persecution" if deported to Yugoslavia. The 1978 amendment withdrew that discretionary authority with reference to Nazi criminals; those who had persecuted could no longer find sanctuary from presumed persecution.
The Department of Justice moved rapidly to apply the Holtzman amendment. In 1979 the newly created Office of Special Investigations (OSI) superceded the Special Litigation Unit that had been created within INS. The energetic, better financed, and more effective OSI, administratively located in the Criminal Division of the Department of Justice, brought together in one office all investigations and litigations concerning Nazi criminals.22 The OSI would soon become involved in the Artukovic case.
On 16 October 1979 the Government, represented by the OSI, brought action in immigration court to revoke the 1959 stay of deportation. The immigration court held that it had no jurisdiction and that authority to act resided with the Board of Immigration Appeals. In the spring of 1981 the BIA revoked Artukovic's stay of deportation and once again ordered his deportation.23 Appealing this decision to the U.S. Court of Appeals for the Ninth Circuit, Artukovic again succeeded in preventing deportation. The court of appeals ruled that the Government could not simply revoke the suspension of the outstanding deportation order; instead it would have to prove again that Artukovic had assisted the Nazi persecutions and was therefore deportable.24
On 6 February 1984 the OSI started the process anew by asking the BIA to reopen the hearings so that the Government could again present its evidence to show that Artukovic's 1959 stay of deportation should be revoked under the Holtzman amendment. The BIA granted the Government's request and set a hearing date for the spring of 1985. But events from abroad short-circuited the process. This time, however, the interruption did not operate in Artukovic's favor. In early 1984 the district court of Zagreb, Yugoslavia, again indicted Artukovic. He was charged with murder, and also with crimes against humanity and international law. In July 1984 the Yugoslavian embassy submitted an extradition request to the U.S. Secretary of State. In the 1950s this attempt at extradition had failed; in the 1980s it was destined to succeed.
Yugoslavia had formally requested the extradition of Artukovic for the first time in October 1951; he had been charged with murder in violation of Yugoslav law and was extraditable under a 1902 treaty between the United States and Serbia. After receiving notification from the Department of State that the 1902 extradition treaty between the United States and Serbia was a valid basis upon which Yugoslavia could seek the extradition of Artukovic, the consul general of the Federal People's Republic of Yugoslavia hired a private attorney to represent his government's interests and on 29 August 1951 filed a complaint against Artukovic with the commissioner [now called a magistrate] of the U.S. District Court for the Southern District of California.
As is customary when an extradition complaint is filed, Artukovic was arrested by a U.S. marshall and held in custody pending a hearing. At the same time, the commissioner followed normal procedure by denying Artukovic's request to be released on bail. Before this hearing could be held, however, Artukovic petitioned the U.S. District Court for the Southern District of California for a writ of habeas corpus, and the district court issued an order to show cause why the writ should not be granted, meanwhile releasing Artukovic from custody when he posted $50,000 bail.
In July 1952 the district court granted Artukovic's petition for habeas corpus because, contrary to the findings of the Department of State, Yugoslavia could not be recognized as Serbia's successor under the 1902 treaty.25 The U.S. Court of Appeals for the Ninth Circuit, however, agreed with the Department of State and overturned the district court's decision.26 The case was returned to the district court for yet another hearing on the habeas corpus petition and the court again granted it, but this time because the offenses with which Artukovic had been charged in the Yugoslavian indictment were political. Like most extradition treaties to which the United States is a party, the 1902 treaty prohibited the extradition of fugitives for "offenses of a political character." The court had thus ruled that Artukovic could not be extradited.27
The court of appeals agreed,28 but was overturned by the Supreme Court, which returned the case for a hearing on the extradition complaint.29 In the seven years since Yugoslavia had first filed its complaint, no hearing had been held on the matter of extradition; Artukovic had kept the courts busy with his- petition for habeas corpus and the commissioner had delayed hearings on the extradition complaint pending resolution of the habeas corpus petition.
On 16 June 1958 the extradition hearing finally began. But when the commissioner handed down his opinion on 15 January 1959 it was a victory for Artukovic.30 In an opinion rarely supported and widely criticized.31 Commissioner Theodore Hocke concluded that Yugosla- via's evidence failed to meet the relatively lenient probable cause standard for extradition; that is, Yugoslavia had not convinced the commissioner that there were reasonable grounds to believe that Artukovic had participated in or personally committed murder. Dismissing Yugoslavia's testimonial affidavits as not believable, Hocke noted that not only was the testimony mostly in narrative form "drawn to incite passion and prejudice" by referring "constantly ... to children of tender years, newborn babes, aged persons, cruel and inhuman treatment," but the use by witnesses of "the same language," such as "the so-called Independent State of Croatia," also suggested that the communist officials in Yugoslavia and not the witnesses had selected the language.32
In contrast to the affidavits that Yugoslavia had relied upon, Flocke noted that Artukovic "presented live witnesses who were subject to vigorous cross-examination"33 in an American court to refute Yugoslavia's affidavits. Unlike the Yugoslavian affidavits, Hocke found Artukovic's "live witnesses" believable. Hocke was most impressed by testimony about how ineffectual Artukovic had supposedly been as minister of internal affairs. Although Flocke did not dispute the legitimacy of incriminating documents bearing Artukovic's signature, he concluded that Artukovicf s subordinate-one Eugene Kvaternik had been responsible for the murders because he had "usurped all power over the Ustasha" while "the defendant had little or none."34 The commissioner thus held that Artukovic was not extraditable. Yugoslavia could not appeal this decision. And soon after this decision of non-extraditability, the INS suspended Artukovic's deportation.35 Thus by May 1959 Artukovic had found the refuge he had sought when he illegally entered the United States in 1948.
In 1984 the attempt to extradite Artukovic followed a more conventional course than had the effort of the 1950s. When Yugoslavia submitted its request to the Department of State, that agency-in contrast to the evasions of the 1950s-followed established procedure and forwarded the request, along with the necessary documents, to the Department of justice. Unlike the 1950s, when Yugoslavia hired its own attorney and the Department of justice took no active part, in the 1980s the OSI vigorously presented the case for the Government.
The Yugoslav request for extradition was accompanied by the Zagreb indictment charging Artukovic with 22 specific counts of murder and participation in murder of civilians during World War II. The indictment was accompanied in turn by various supporting documents: Yugoslav statutes outlawing murder, war crimes, and crimes against humanity and international law; diplomatic notes; court orders; and documentation (both witness testimony and archival records) detailing the crimes of Artukovic and the Ustasha. In November 1984 the Government filed an extradition complaint with U.S. Magistrate Volney V. Brown, Jr., of the U.S. District Court for the Central District of California. Artukovic was arrested and held without bond, confined first in the Los Angeles county jail at the medical facility of the U.S.C. hospital and later in Long Beach at the U.S. Naval Hospital.36 The complaint charged that Artukovic "is duly and legally charged with murder, in violation of the laws of and in the jurisdiction of the Government of Yugoslavia"; that murder "is among the offenses enumerated in Article 11 of the Treaty of Extradition between the United States and Serbia (now Yugoslavia) of May 17, 1902, . . . which treaty is still in force and effect"; and that Artukovic should "be surrendered to competent authorities of Yugoslavia" for trial. 37
The crimes of the Ustasha documented by the Zagreb indictment included the murder of hundreds of specifically named Serbs, Gypsies, and Jews; the creation of the Jasenovac concentration camp, where hundreds of thousands of individuals were killed; and the following specific cases of barbarism:
The evidence against Artukovic also included, in addition to evidence about his role in the above activities of the Ustasha, various affidavits from witnesses who had been in a position to observe his activities during World War II.
One witness, a former official of the wartime Croatian state, testified that when he attempted to remove the chief of the Sarajevo police for drawing up a list of 200 intellectuals to be deported to the Jasenovac concentration camp, Artukovic restored this police chief to his post and reprimanded the witness for "hindering" rather than "assisting ... to send all undesirable elements to the Jasenovac camp to starve there…"39
A second witness testified that when he appealed a German order to "persecute and kill Serbs" to Artukovic, whom he had known when they were students, the Minister of Internal Affairs told him that "it is necessary to slaughter and kill Serbs even without Germans suggesting it to you."40 And later Artukovic appointed this witness as head of a local police force with the general directive to "slaughter all Serbs ' one and all, as well as Jews and Gypsies. . . ."41 This witness further testified that various other local police chiefs appointed by Artukovic had told him that they had received similar orders from the minister.
This second witness also testified that Artukovic had in 1941 personally ordered the incarceration of the former national deputy Jesa Vidic in the Danica concentration camp; when this witness presented Olga Vidic's pleas to exchange title to a piece of property for her husband's release, Artukovic replied ". . . I will kill him and take ... the land,"42 a threat which he carried out. This witness also testified that on another occasion Artukovic had boasted: "You see how I am solving the Jewish question. First I take what they have and then I kill them all off, and in that way, as you can see, in a few months I have solved the Jewish problem . . . and not like the Germans, who have prolonged the matter with the Jews for years."43
A third witness, a former sergeant in the wartime Croatian army, testified that in October 1941, when he was serving as an escort for both Artukovic and Pavelic, he heard Artukovic order another soldier "to throw many Jews into the trucks," and later saw "some thirty to forty truckloads of Jews being taken towards Jasenovac accompanied by Artukovic."44 Later in the same year, when the witness accompa- nied a motorcade of "trucks full of arrested partisans, Jews and others, in my estimate some seven hundred people, among them many women and small children," he heard Artukovic order "that the back part of the autocade ... be disposed of because it would be too much for the camp. So women, children and men were taken out of the trucks, in my estimate some 400-500 persons and by machinegun fire were killed. . . "45 This witness, who at times had served as Artukovic's driver, further testified about killings ordered by Artukovic in 1942 and 1943 and also about Artukovic's visits to Jasenovac concentration camp.
The fourth witness was a schoolteacher who had been deported during the war to several concentration camps, including one reserved for mothers with children under ten years old; she testified that in August 1942 Artukovic had inspected that camp in his Ustasha uniform, accompanied by Germans, shortly after 2,000 children had been gassed.
The Government also submitted, as evidence to support a probable cause finding, various orders signed by Artukovic: the "Decree on the Supression of Violent Criminal Acts," creating concentration camps; an organizational decree creating in the Artukovic ministry a "Section for Administration of Camps"; and a decree on "Responsibility for the Solution of the Jewish Question." In addition the Government submitted the texts of wartime statements made by Artukovic and reported by the Croatian press, including one that ". . . the Croatian government wishes to resolve the Jewish problem in the same way as the German government did.46
Artukovic again mounted an aggressive defense. Although the rights of a fugitive in an extradition hearing are limited, he advanced a number of procedural and substantive arguments-many resurrected from his defense of the 1950s-that were mostly ignored or summarily rejected as inappropriate in an extradition hearing.47
One tactic not attempted in the 1950s was the competency argument because at that time Artukovic was still a relatively young man. But in 1984 and 1985 Artukovic was in his late eighties, and his attorneys argued that his precarious mental and physical health prevented him from assisting in his own defense or even comprehending the charges lodged against him. However, U.S. Magistrate Volney V. Brown found Artukovic competent- indeed, he concluded that Artukovic was in better health since his confinement in a government hospital than he had been before his arrest.48
Artukovic also tried again to force Yugoslavia to try its case before an American magistrate. In addition to the argument that a communist system of criminal justice is so defective that no fugitive should be surrendered to a communist country,49 he objected to the use of affidavits as a substitute for "live witnesses." He argued that if the witnesses were still living, they should be forced to testify in California in person; if they were dead, their testimony should not be accepted. Further, although in such hearings the value of testimony certified by the government requesting extradition is normally accepted at face value, Artukovic attacked some of the testimony as "an utter sham and fabrication,"50 particularly that of the second witness, his wartime subordinate and a convicted felon. But the use of affidavits is the norm in extradition hearings, and the magistrate did not address the propriety of their use; he simply relied on them in his decision.
By invocation of the doctrine known as res judicata, Artukovic sought refuge behind the 1959 non-extraditability ruling of Commissioner Theodore Hocke. Roughly, this doctrine means that once a court renders a final judgment, no further action involving the same claim is permitted. Artukovic thus argued that the Hocke finding that there was no probable cause and that the charges against him constituted a "political offense" was a final judgment; the Government, therefore, could not again seek his extradition on these charges.51 Magistrate Brown summarily rejected this res judicata argument because the doctrine is inapplicable to extradition hearings.
A closely allied argument advanced by Artukovic was grounded in the Constitution. When Yugoslavia lost its case in 1959, it could not appeal the decision-a finding of non-extraditability is not appealable. A quarter of a century had passed when, in a changed American political climate, Yugoslavia again submitted its request to the Secretary of State. Artukovic argued that the 25-year delay denied his constitutional right under the Fifth Amendment not to be deprived of life, liberty, or property without due process. The magistrate totally rejected this argument; the guarantees of the Constitution restrict the governments in the United States-they do not control the behavior of other governments. Such a due process argument might be taken seriously if the fugitive could show that the delay was deliberately designed to prejudice the trial and had done so-Artukovic had made no such showing.52
Magistrate Brown addressed at greater length Artukovic's "political offense" argument. Although Hocke's 1959 non-extraditability holding rested on his finding of no probable cause, he also gratuitously asserted that the charges against Artukovic were of a political character. Further, in the hearing on his habeas corpus petition in the 1950s judges at both the trial and appellate levels concluded that the charges could be characterized as political.
Political offenses are traditionally categorized as either "purely political offenses"-acts such as rebellion, treason, sedition, or espionage aimed at governments-or as "relative political offenses" otherwise common crimes that are committed in connection with a political uprising.53 The meaning of "purely political offenses" is clearly understood. The meaning of "relative political offenses" is open to disagreement. By applying the concept of "relative political offenses," American courts have at times granted protection to killers.54 Still, while it has been established United States policy to grant refuge to genuine political dissidents and to refuse their deportation or extradition, it has also been U.S. policy to deny sanctuary to those criminals who take advantage of political upheavals to maim and murder. Thus the proposition that government sponsored genocide constitutes a "political offense" could have been accepted by an American court only in the anticommunist climate prevalent in the 1950s.
Magistrate Brown emphatically rejected Artukovic's characterization of the mass killings in Yugoslavia during Worlld War II as a political offense. Artukovic stood accused of having killed "for personal gain, racial or religious hatred, and/or impermissible vengeance upon disarmed enemy soldiers."55 Brown concluded: "Ridding a country of some of its population for such reprehensible reasons, as part of some larger political scheme, is not a crime of a 'political character' and is not thus covered by the 'political offense' exception to extradition."56
Unlike Commissioner Hocke in 1959, Magistrate Brown found much of Yugoslavia's resubmitted evidence, as well as its new evidence, persuasive enough to warrant extradition. He found particularly significant the eyewitness testimony of the army sergeantthe third witness-and, to a lesser extent, that of the local police chief-the second witness. But he also rejected some of the materials submitted. Although the evidence concerning Artukovic's role in creating concentration camps in the Nazi puppet state raised the "suspicion" that he had done so, it did not constitute "probable cause" and Artukovic could not be tried on this count.57 And, Brown continued, while Artukovic's antisemitic statements merit "the opprobrium of all decent people," they did not "even raise a suspicion of extraditable conduct."58
In his initial March 1985 order Brown certified Artukovic's extraditability on only one count: the murder of Jesa Vidic who, according to the testimony of the second witness, had been sent to a concentration camp and there killed on Artukovic's specific order. In his amended orders of May and August 1985, however, the magistrate held that there was probable cause to believe that Artukovic was responsible for the murder of:
He certified Artukovic's extraditability on these charges and ordered that the certificate of extraditability and all documents and records of the proceedings be forwarded to the Secretary of State.
That night (11 February), Justice William Rehnquist denied Artukovic's application to the U.S. Supreme Court for a stay of extradition pending his habeas corpus appeal. 65 The next day, 12 February 1986, 38 years after he had illegally entered the United States, Artukovic, escorted by U.S. marshals, was flown from California to New York and put on a plane for Yugoslavia.66
Two months later, on 14 April 1986, Artukovic's trial on the charges that Magistrate Brown had certified as extraditable began in Zagreb.67 On 14 May 1986 a two-judge, three-juror court found him guilty of murder and sentenced him to death by firing squad.68 The Supreme Court of the Republic of Croatia rejected his appeal.69 Finally, on 2 September 1986 the highest court of Yugoslavia also rejected Artukovic's appeal.70
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.130By 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
4. For personal data on Braunsteiner, see the West German indictment in the Maidanek trial: Staatsanwaltschaft Koln, Anklageschrift gg. Hermann Hackmarm u.A., 130 (24) Js 200/62 (Z), 15 Nov. 1974, pp. 157-63.
5. On the SS female guards, see Sybil Milton, "Women and the Holocaust," in When Biology Became Destiny: Women in Weimar and Nazi Germany, ed. Renate Bridenthal and others (New York, 1984), pp. 308-10.
6. On the different types of camps, their organization and history, see Henry Friedlander, "The Nazi Concentration Camps," in Human Responses to the Holocaust, ed. Michael Ryan (New York and Toronto, 1981), pp. 33-69, and idem, "The Nazi Concentration and Extermination Camps," in Genocide: Critical Issues of the Holocaust, ed. Alex Grobman, Daniel Landes, and Sybil Milton (New York, 1983), pp. 222-32.
9. When Ryan advanced this argument of double jeopardy at her trial in West Germany, it was rejected because she had not been convicted in Austria for crimes in Maidanek but only for crimes in Ravensbruck. The failure to convict for Maidanek crimes had been due to the lack of documentation and witnesses during the immediate postwar years. Staatsanwaltschaft Koln, Anklageschrift, 130 (24) Js 200/62 (Z), pp. 163, 281; Landgericht Dusseldorf, Urteil gg. Hermann Hackmarm u.A., 8 Ks 1/75, 30 June 1981, pp. 688-89.
11. Landgericht Dusseldorf, Urteil, 8 Ks 1/75, 30 June 1981, pp. 683-86. The fact of German citizenship of native Austrians serving in the German forces during World War II is often misunderstood. Thus James W. Moeller, "United States Treatment of Alleged Nazi War Criminals: International Law, Immigration Law, and the Need for International Cooperation," Virginia Journal of International Law 25 (1985): 812, classifies Braunsteiner-Ryan as an Austrian who was not a German citizen.
31. See, for example, Manuel R. Garcia-Mora, "The Nature of Political Offenses: A Knotty Problem of Extradition Law," Virginia Law Review 48 (1962): 1246-47, who cites this case as an example of such a broad construction of the political offense concept that the principle "amounts to converting a common crime into a political offense simply because it took place in times of turbulent political conditions."
36. In re Artukovic, No. CV 84-8743-R(B). Magistrate Brown issued a series of opinions, amended opinions, and orders in this case: 1) Order 11 Feb. 1985, reaffirmed 4 Mar. 1985; 2) Opinion 5 Mar. 1985; 3) Amended Certificate of Extraditability and Order of Commitment 1 May 1985; and 4) Amended Opinion 8 Aug. 1985, which was adopted by the district court 6 Feb. 1986, entered as its opinion, and published at 628 F. Supp. 1370 1372-79. [Hereafter these opinions will only be cited by date].
47. For Artukovic's arguments and the Government's refutation, see In re Artukovic, No. CV 84-8743-R(B), "Respondent's Trial Brief," filed 29 Jan. 1958, and "Government's Response to Trial Brief," filed 8 Feb. 1958.
53. For a discussion of political offenses, see Garcia-Mora, "Nature of Political Offenses" pp. 1226-57; Steven Lubet and Morris Czackes, "The Role of the American Judiciary in the Extradition of Political Terrorists," Journal of Criminal Law and Criminology 71 (1980):193-210; and Charles L. Cantrell, "The Political Offense Exemption in International Extradition: A Comparison of the United States, Great Britain, and the Republic of Ireland," Marquette Law Review 60 (1977): 777-824.
54. For example, in the 1950s a district court refused Cuba's request for a fugitive who had, in conjunction with Castro's revolution, killed political prisoners. Ramos v. Diaz, 179 F. Supp. 459 (S.D. Fla. 1959).
59. Amended Certificate of Extraditability and Order of Commitment 1 May 1985, at 3-4; Amended Opinion 8 Aug. 1985, adopted by district court and published at 628 F. Supp. 1370, 1379 (C.D. Calif. 1986).
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).
85. Ibid., p. 558.