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United States House of Representatives

ARTICLE BY PROF. ALFRED de ZAYAS -- (BY PROF. ALFRED DE ZAYAS) (Extension of Remarks - June 14, 1994)
[Page: E1211]
in the House of Representatives
TUESDAY, JUNE 14, 1994
• Mr. TRAFICANT. Mr. Speaker, I rise today to submit part of an article regarding the case of John Demjanjuk recently printed in the Globe, the International and Immigrant Law Section newsletter published by the Illinois State Bar Association. Mr. Speaker, as you know, the Israeli Supreme Court acquitted John Demjanjuk of the charges of being Ivan the Terrible last September. Yet, the Justice Department still hounds Mr. Demjanjuk and threatens to deport him. Most recently, the Justice Department filed a petition with the Supreme Court to have the Court overturn a ruling by the 6th Circuit Court of Appeals which found that Justice Department attorneys had committed fraud on the court by withholding exculpatory evidence during Demjanjuk's extradition hearing in 1986. The courts ruling also effectively nullified his extradition order.
• Mr. Speaker, over the next few days, I will submit for the Record an article by Prof. Alfred de Zayas J.D. Ph.D, that deals with the Demjanjuk case.
[Page: E1212]
After 17 years of investigations and legal proceedings in the United States and Israel, the Ukrainian born retired auto worker from Cleveland, John Demjanjuk, 74, is bracing for further litigation. Vindicated of the charge of being the infamous Ivan the Terrible of Treblinka, now he is being accused of being a lesser war criminal, and the Justice Department has moved to have him stripped of his American citizenship and deported from the United States. As some demonstrators outside his house in Cleveland have shouted: `If not Ivan the Terrible, at least a terrible Ivan.'
On 30 December 1993, federal prosecutors filed briefs in Federal District Court in Cleveland and in the Federal Court of Appeals in Cincinnati, contending that Mr. Demjanjuk had lied on his immigration papers and had served as a Nazi S.S. guard in German death camps in Poland. Mr. Demjanjuk claims to have been a prisoner of war in Germany and denies ever having served as a Nazi camp guard.
This constitutes a remarkable shift in legal strategy on the part of the Office of Special Investigations (O.S.I.), which for years had insisted that Mr. Demjanjuk was identical with the barbaric Ivan the Terrible, who according to witnesses tortured his victims before pumping gas into the chambers where as many as 800,000 men, women and children perished. It took the Israeli Supreme Court to prove the U.S. prosecutors wrong.
The history of this case is full of bitterness and recrimination. As understandable as the abhorrence we all feel against the Nazis is, judicial guarantees of due process are there to prevent the `lynching' of persons suspected of authorship or complicity in particularly offensive crimes. We owe it to ourselves and to our system of justice to give Mr. Demjanjuk all those procedural rights which the Nazis never gave to their victims.
It is in this sense that we should understand the tenor of the November 17, 1993, decision of the Sixth Circuit Court of Appeals in Cincinnati setting aside its 1986 order to extradite Mr. Demjanjuk to Israel to face murder charges as Treblinka's Ivan the Terrible. The unanimous court held that crucial evidence had been withheld from the court and
from Demjanjuk's lawyers, concluding that `the O.S.I. attorneys acted with reckless disregard for their duty to the court' and that they had committed `fraud on the court.' These are strong words that should make the Department of Justice review the methods used by the Office of Special Investigations not only in the Demjanjuk case, but in the more than 500 cases currently being investigated or tried.
While the Sixth Circuit Court has shown that U.S. justice can exercise self-regulation and provide a measure of redress in cases of miscarriage of justice, let us not forget that Mr. Demjanjuk was indeed extradited in 1986, tried, sentenced to death, and that he spent over five years on death row. In fact, he would have been executed long ago but for the courage of his Israeli defense lawyer. Yoram Sheftel, and the integrity of the Israeli Supreme Court, which quashed the earlier judgment in July 1993 and returned him to the United States in September 1993.
The question arises whether it serves any purpose to prolong Demjanjuk's 17-year ordeal, and whether in the light of the passage of time and the difficulty of obtaining reliable evidence, it might not be better to discontinue the proceedings in Cleveland and Cincinnati. At the very least, we should be conscious of the arguments set forth in the judgment of the Court of Appeals for the Sixth Circuit, signalling the imperative need to watch for misconduct on the part of overzealous prosecutors. We should also devote some time to reflect more broadly on the human rights implications of the Demjanjuk and other O.S.I. cases.
Human rights principles are tested not on `consensus victims' or on `politically correct' victims, but rather on unpopular individuals. It is frequently the controversial case, where hardly anyone wants to recognize the person in question as a victim, that creates good law.
Nearly 100 years ago, Emile Zola exposed and condemned the failures of French justice in his article `J'accuse.' We remember that in 1894 Alfred Dreyfus, a French officer of Jewish descent, had been falsely accused and convicted of betraying military secrets. He was sent to lle du Diable. French Guiana, to serve a sentence of life
imprisonment. Evidence of his innocence was uncovered but suppressed by the military. Zola's uncomfortable advocacy forced even the politically correct to reassess the case, and Dreyfus was finally vindicated.
Applying the Dreyfus precedent to the Demjanjuk case, we start from the premise that everyone accused of a criminal offence is entitled to the presumption of innocence. While we all agree that Nazism was one of the most inhuman systems the world has known, and that criminals like Ivan the Terrible ought to be prosecuted, we also recognize that justice requires that only the guilty be punished. In the instant case, it appears that Mr. Demjanjuk is not Ivan the Terrible and it remains to be proven that he was a Nazi guard at all. In any event, he has rights to due process under the U.S. Constitution which must be respected. Moreover, an `international minimum standard' on human rights has emerged, which has been laid down in regional and universal instruments, notably in the Universal Declaration of Human Rights of 1948, the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the International Covenant on Civil and Political Rights of 1966 and the American Convention on Human Rights of 1969.
While readers of this commentary may be very familiar with U.S. constitutional guarantees, they may be less aware of international human rights standards, in particular those norms that apply by virtue of U.S. ratification of international treaties.
The most important treaty in this field is the International Covenant on Civil and Political Rights, which the United States signed in 1977 during the Carter administration and ratified in 1992 during the Bush administration.
Article VI of our Constitution stipulates that treaties made under the authority of the United States shall be the supreme law of the land and that judges shall be bound thereby. Thus, in all criminal matters and in suits at law pursuant to the 1979 Holtzman Amendment in denationalization and deportation cases, judges ought to take international law into consideration, including the obligations undertaken by the United States pursuant to the Covenant on Civil and Political Rights.
Although upon ratification in 1992 the U.S. introduced a declaration that the provisions of the Covenant: `are not self-executing,' this does not render the Covenant meaningless or invite judges to disregard its provisions. It means that the United States ought to adopt appropriate legislation and ensure that inconsistent federal and state laws are repealed, so that the U.S. will not be in violation of its international obligations under the Covenant.
Mr. Demjanjuk's 17-year ordeal, his detention, extradition proceedings, surrender to Israel (also a party to the ICCPR since 1992), trial in Israel, `death row phenomenon' (from 1988 to 1993), continued detention after acquittal, and further proceedings in the United States following his return raise numerous issues not only under the U.S. Constitution, but also under the Covenant.


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