United States House of Representatives
ARTICLE BY PROF. ALFRED de ZAYAS -- (BY PROF. ALFRED DE ZAYAS) (Extension
of Remarks - June 14, 1994)
HON. JAMES A. TRAFICANT, JR.
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
[FROM THE ISBA GLOBE, JANUARY 1994]
(BY PROF. ALFRED DE ZAYAS)
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
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
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
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.