Oped article: The human rights of the Unpopular

[published in the journal "Human Rights" of the Section of Individual Rights & Responsibilities of the American Bar Association, Winter 1994, Vol. 21, Issue 1, p.28 under the misleading title " Demjanjuk: Examining his human rights violations", which was not my title. You would think that the article focused on war crimes and crimes against humanity by Demjanjuk, whereas the articles is about the human rights of the unpopular -- i.e. of Demjanjuk himself.

I also published an op-ed piece in the Chicago Daily Law Bulletin, on 23 November 1993, under the title "Demjanjuk and human rights guarantees" and a longer piece in The Globe, January 1994, Vol. 31, No. 5, pp.3-7, Journal of the Illinois Bar Center, Springfield, Illinois, under the title "Human Rights implications of the Demjanjuk case". This latter article was read in its entirety into the United States Congressional Record in May 1994.]

The United States Justice Department's handling of the case against John Demjanjuk, charged with being Treblinka's Ivan the Terrible, should be proof that a review is needed of the methods used by the department's Office of Special Investigations (O.S.I:)

On November 17, 1993, the Sixth Circuit Court of Appeals in Cicinnati set aside its 1986 order to extradite John Demjankjuk, 74, to Israel to face murder charges.

The court held that "the O.S.I. attorney acted with reckless disregard for their duty to the court" and that they had committed "fraud on the court."

Demjanjuk was extradited in 1986, tried, sentenced to death, and spent over five years on death row. He would have been executed long ago but for the Israeli Supreme Court, which quashed the earlier judgment in July 1993 and returned him to the United States in September 1993.

Demjanjuk's ordeal, however, is not over: He was stripped of U.S. citizenship in 1981 and he is now fighting to regain it. If he fails, he will face deportation proceedings.

Besides signalling the necessity to watch for misconduct on the part of overzealous prosecutors, the Sixth Circuit's decision gives occasion for broader reflection 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 the controversial case, where hardly anyone wants to recognize the personl in question as a victim, that usually creates good law and establishes precedent.

Being the "devil's advocate" is rarely popular, and yet a new perspective may help reach a better synthesis, a more human solution. Nearly one hundred years ago, Emile Zola exposed and condemned the failure of French justice in his article " J'accuse ". We remember that in 1894 Alfred Dreyfus, an officer of Jewish descent, had been falsely accused and convicted of betraying military secrets. He was sent to Devil's Island to serve a sentence of life imprisonment. Evidence of his innocence was uncovered but suppressed by the military. Zola's unpopular advocacy forced even the politically correct to reassess the case, and Dreyfus was finally vindicated. New standards of journalism emerged and we are all the better for it.

Everyone agrees that Nazism was one of the most inhuman systems the world has known, where human rights were systematically violated, where war crimes and crimes against humanity were perpetrated in an unprecedentet scale. The Nuremberg Trials proved to the horror of the world that genocide had been committed. War crimes trials have been conducted in many countries for the past 48 years in order to make sure that the murderers do not get away.

But in it is in our tradition of justice that every suspect must be presumed innocent until proven guilty, and that he has the same human dignity we claim for ourselves. Basic human rights must always be respected and fair judicial proceedings must be guaranteed -- in every case, regardless how politically incorrect.

Thus, even if we all hate Nazism and we agree that Ivan the Terrible and persons like him must be prosecuted, we recognize that the former Cleveland auto worker John Demjanjuk has civil rights under the United States Constitution that must be respected.

While readers of this article may be very familiar with American constitutional rights, they may be less aware of international human rights standards, in particular of those international norms that apply by virtue of United States ratification to 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, becoming a party in 1992.

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.

The 16-year ordeal of Mr. Demjanjuk, his detention, extradition proceedings, surrender to Israel, trial in Israel, "death row phenomenon", continued detention after acquittal, and further proceedings in the United States following his return raise numerous issues under the Covenant.

For instance, article 14(1) of the Covenant requires fundamental fairness by the courts, impartiality and equality of arms. Fairness also entails the requirement that a proceeding be held within a reasonable time. Subjecting Mr. Demjanjuk to a criminal proceeding more than forty years after the offences in question raises issues under this provision, since it is extremely difficult for him or for anyone in his situation to properly represent himself, in view of his age and the near impossibility to obtain exculpatory documents, witnesses, or even to remember the events in question.

Article 14(2) requires strict adherence to the principle of the presumption of innocence, not only in all criminal matters, but also in civil matters with penal elements or consequences, such as exile or forfeiture of old age pension.

Under interntional law, a State cannot expel its own nationals. As to aliens, article 13 of the Covenant imposes certain conditions. It would be incompatible with the Covenant to attempt circumventing this prohibition by denationalizing a person before expelling him.

Article 12(4) provides that no one shall be arbitrarily deprived of the right to enter his own country. If deported, Mr. Demjanjuk would be barred from reentering the United States. Mr. Demjanjuk has lived most of his life in the United States and has been a citizen for decades. His entire family lives in the United States and he has no links to other countries. There can be no question that the USA is his country.

Article 17 (1) provides for the right to privacy, home and family life. The concept of family does not only include the "nuclear family" but also nephews and grandchildren. Deportation of an individual would violate his right to family life, because he would be separated from his entire family.

Article 17 (2) stipulates that everyone has the right to the protection of the law against unlawful attacks on his honour and reputation. Mr. Demjanjuk has endured a consistent pattern of slander and libel by the press and the authorities.

Article 20, paragraph 2, provides that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. The press campaign conducted against Mr. Demjanjuk has resulted in hate calls and letters, hostile demonstrations at airports and ouside his residence, against which he is not being adequately protected.

Article 26 requires equality before the law. Only this particular category of immigrants is being singled out for denationalization and deportation. Japanese immigrants, many of whom served in World War II and some of whom may have engaged in persecution and genocide against Koreans and Chinese are not being investigated or prosecuted. Other immigrants to the United States who may have engaged in persecution against racial or religious minorities, including Russian KGB officers who may have been involved in murders such as those at Katyn Forest in 1940, are also not being investigated or prosecuted. Furthermore, the denial of social security benefits only to the category of immigrants who wore Waffen-SS uniforms discriminates against them. The arbitrary nature of some of the denationalization proceedings is also manifested by the fact that the target group is being subjected to this treatment not because of proven conduct but only because of their status.

Article 7 stipulates that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." The nature of the proceedings against Mr. Demjanjuk, the atmosphere of hate that accompanied the extradition, the surrender for trial in Israel (which engages the responsibility of the United States), the initial trial in Israel, the demonstrations of jubilation following his being sentenced to death, the ensuing years of uncertainty -- commonly known as "death row phenomenon" following the judgment of the European Court in the Soering v. United Kingdom case (161 Eur. Ct.H.R.[Ser.A] 1989) -- the continued detention for eight weeks following acquittal by the Israeli Supreme Court : all these elements, taken cumulatively, may be deemed to amount to a violation of Article 7 of the Covenant.

No one has been heard to mention that Mr. Demjanjuk may be entitled to compensation for a miscarriage of justice, and yet, this is an established right in international law. Article 9 (5), of the Covenant provides for compensation in cases of arbitrary detention; article 14 (6), in cases of miscarriage of justice. The "understanding" appended by the United States Senate on 2 April 1992 when giving advice and consent to the President on the Convenant provides: "That the United States understands the right to compensation referred to in Articles 9(5) and 14(6) to require the provision of effective and enforceable mechanisms by which a victim of an unlawful arrest or detention or a miscarriage of justice may seek and, where justified, obtain compensation from either the responsible individual or the appropriate governmental entity. Entitlement to compensation may be subject to the reasonable requirements of domestic law." Accordingly, it cannot be excluded that Mr. Demjanjuk may be entitled to compensation for miscarriage of justice.

Another international norm that we should take into account is the 1948 Universal Declaration of Human Rights. Indeed, forty-five years after its adoption by the UN General Assembly, under the Chairmanship of Mrs. Eleanor Roosevelt, many legal experts consider it to have become customary international law.

The following provisions of the Declaration appear to have been violated, or there is an imminent risk of their violation:

Article 9, which prohibits exile.

Article 15, which stipulates that everyone has the right to a nationality, and that no one shall be arbitrarily deprived of his nationality. Indeed, the denial of German nationality to German Jews during the 1930's has been rightly condemned as a crime against humanity. Moreover, there is a strong trend in international law to prevent statelessness. The denationalization of Mr. Demjanjuk would render him stateless. The UN Convention on the Reduction of Statelessness prohibits such denationalizations.

Article 17, which affirms the right to property. Denial of social security old age benefits would constitute an arbitrary deprivation of property.

Article 22, which provides for the right to social security. The denial of social security benefits constitutes a particularly offensive violation of human rights when the victim has a contractual claim by virtue of his contributions over a period of decades.

International human rights law has similarly evolved in the regional level, notably in Europe under the European Convention on Human Rights, and in the Americas under the American Convention on Human Rights.

Article 3 of Protocol 4 to the European Convention on Human Rights stipulates that "No one shall be expelled... from the territory of the State of which he is a national." This provision cannot be circumvented by expatriation of the victim.

The jurisprudence of the European Commission and Court of Human Rights and of the Inter-American Commission and Court of Human Rights have further restricted the powers of States to deport aliens. In the landmark Berrehab Judgment (21 June 1988, Series A: v. 138), the European Court found that the Netherlands violated article 8 of the European Convention by separating a Moroccan father from his daughter, when it refused to extend his visa and expelled him to Morocco. More recently, in the Beldjoudi v. France Judgement (26 March 1992, Series A: v. 234-A), the Court found that, notwithstanding Mr. Beldjoudi's criminal record, his deportation to Algeria would constitute a violation of article 8, because his family life with his French wife would be disrupted. It the light of this jurisprudence, it can be said without fear of contradiction that the projected denationalization and deportation of a person like Mr. Demjanjuk could not take place in a European country, party to the European Convention on Human Rights, e.g. the United Kingdom or France.

CONCLUSION

In the light of the above considerations, it would seem that Mr. Demjanjuk's rights to presumption of innocence, to family life, to honour and reputation must be respected. His entitlement to compensation for a miscarriage of justice must be reviewed.

Denationalization and deportation of Mr. Demjanjuk would contravene binding provisions of international human rights law.

It would be regrettable if the United States, which traditionally has been at the vanguard of human rights, were to be perceived in the world as not adhering to the "international minimum standard" with regard to the human rights of Mr. Demjanjuk.

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