Appendix — Demjanjuk v. Petrovsky

FILE

No.

¥ GERK

Dapene Dutt, US.

RD °°

REG 20 1985

101, UR.

In the Supreme Court of the United States

October Term, 1985

JOHN DEMJANJUK,

Petitioner,

VS.

JOSEPH PETROVSKY, et al.,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Mark J. O’Connor, Counsel of Record

510 Brisbane Building

Buffalo, New York 14230

(716) 854-2839

JOHN J. GILL

948 Engineers Building

Cleveland, Ohio 44114

(216) 241-5040

Davin C. EISLER

330 Engineers Building

Cleveland, Ohio 44114

(216) 771-8400

Counsel for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

Judgment Entry and Opinion of the United States

Court of Appeals for the Sixth Circuit (October

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Memorandum Opinion and Order of the United States

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Judgment Entry of the United States District Court

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Memorandum Opinion and Order of the United States

District Court (April 15, 1985) ...........2......... ... A38

Opinion and Order of the United States District Court

(February 21, 1985) .................... pebincciecaieanbaanedbsalieapnaiie A96

Order of the United States District Court (December

6, 1984 and December 11, 1984) 000... eee eee eee A120

Complaint of the United States (November 18, 1983) ....A131

Declaration of Jeffrey H. Smith (November 17, 1983)

Convention on Extradition Between the Government

of the United States of America and the Govern-

ment of the State of Israel - 14 U.S.T. 1717 (En-

tered into Force December 5, 1963) 0.0.0... Al42

Nazis and Nazi Collaborators (Punishment) Law, 5710-

SE ccincccatirvninnsitiinuititiensnsstiakiiansttimnadeinliea on-eeeeedt 154

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APPENDIX

JUDGMENT ENTRY AND OPINION OF THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

(Filed October 31, 1985)

No. 85-3435

UNITED STATES COURT OF APPEALS

For THE SIxtH CIRCUIT

JOHN DEMJANJUK,

Petitioner-Appellant,

v.

JOSEPH PETROVSKY, et al.,

Respondents-Appellees.

On APPEAL from the United States District Court

for the Northern District of Ohio

Decided and Filed October 31, 1985

Before: Livety, Chief Judge; KerrH and Merarrt, Cir-

cuit Judges.

LiveLy, Chief Judge. This international extradition

case is before the court on appeal from the denial of a pe-

tition for a writ of habeas corpus.

a

The petitioner, John Demjanjuk, is a native of the

Ukraine, one of the republics of the Soviet Union. Dem-

janjuk was admitted to the United States in 1952 under

the Displaced Persons Act of 1948 and became a naturalized

A2

United States citizen in 1958. He has resided in the Cleve-

land, Ohio area since his arrival in this country.

In 1981 the United States District Court for the North-

ern District of Ohio revoked Demjanjuk’s certificate of

naturalization and vacated the order admitting him to

United States citizenship. See United States v. Demjanjuk,

518 F.Supp. 1362 (N.D. Ohio 1981), aff'd per curiam, 680

F.2d 32 (1982), cert. denied, 459 U.S. 1036 (1982). Chief

Judge Battisti of the district court entered extensive

findings of fact from which he concluded that the certifi-

cate and order “were illegally procured and were procured

by willful misrepresentation of material facts under 8

U.S.C. § 1451(a).” 518 F.Supp. at 1386.

The district court found that Demjanjuk was con-

scripted into the Soviet Army in 1940 and was captured

by the Germans in 1942. After short stays in several

German POW camps and a probable tour at the Traw-

niki SS training camp in Poland, Demjanjuk became a

guard at the Treblinka concentration camp, also in Poland,

late in 1942. In his various applications for immigration

to the United States the petitioner misstated his place of

residence during the period 1937-1948 and did not reveal

that he had worked for the SS at Treblinka or served

in a German military unit later in the war. In the de-

naturalization proceedings Demjanjuk admitted that his

statements concerning residence were false and that he

had in fact served in a German military unit. He stead-

fastly denied that he had been at Trawniki or Treblinka,

though documentary evidence placed him at Trawniki and

five Treblinka survivors and one former German guard

at the camp identified Demjanjuk as a Ukranian guard

who was known as “Ivan or Iwan Grozny,” that is, “Ivan

the Terrible.”

A3

Following the denaturalization order the government

began deportation proceedings against Demjanjuk. While

these proceedings were underway the State of Israel

filed with the United States Department of State a re-

quest for the extradition of Demjanjuk. The United States

Attorney for the Northern District of Ohio, acting on

behalf of the State of Israel, filed a complaint in the dis-

trict court seeking the arrest of Demjanjuk and a hear-

ing on the extradition request. Following a hearing the

district court entered an order certifying to the Secretary

of State that Demjanjuk was subject to extradition at

the request of the State of Israel pursuant to a treaty on

extradition between the United States and Israel signed

December 10, 1962, effective December 5, 1963. Bond

previously granted Demjanjuk was revoked and he was

committed to the custody of the Attorney General of the

United States pending the issuance of a warrant of sur-

render by the Secretary of State.

I.

A.

There is no direct appeal from an order certifying ex-

tradition, and the only method of review is by collateral

habeas corpus proceedings. Collins v. Miller, 252 USS.

364, 369 (1920); Caplan v. Vokes, 649 F.2d 1336, 1340 (9th

Cir. 1981). The scope of review in habeas corpus following

an extradition order is quite narrow. After differentiat-

ing between the requirements of probable cause and proof

beyond a reasonable doubt, Justice Holmes delineated the

scope of review as follows in Fernandez v. Phillips, 268

U.S. 311, 312 (1925):

The foregoing are general principles relating to

extradition, but there are further limits to habeas

a i

A4

corpus. That writ as has been said very often cannot

take the place of a writ of error. It is not a means

for rehearing what the magistrate already has decided.

The alleged fugitive from justice has had his hearing

and habeas corpus is available only to inquire whether

the magistrate had jurisdiction, whether the offence

charged is within the treaty and, by a somewhat lib-

eral extension, whether there was any evidence war-

ranting the finding that there was reasonable ground

to believe the accused guilty. Benson v. McMahon,

127 U.S. 457. Re Luis Oteiza y Cortes, 136 U.S. 330.

Bryant v. United States, 167 U.S. 104, 105. Elias v.

Ramirez, 215 U.S. 398, 406.

Though Demjanjuk acknowledges these limitations on the

scope of appeal, he presents a somewhat confusing melange

of arguments. We will attempt to deal with them sep-

arately.

B.

Before reaching the more technical arguments related

to jurisdiction of the district court and the question of

whether the crimes charged were within the treaty pro-

visions, we deal with the sufficiency of the evidence. As

noted, there was sworn testimony by affidavits from six

witnesses who were at Treblinka in 1942 and 1943 who

identified Demjanjuk. These witnesses stated that Dem-

janjuk was a guard who herded prisoners into the gas

chambers and then actually operated the mechanism which

filled the chambers with gas. In addition, several of the

witnesses testified that they saw Demjanjuk beat and

maim prisoners, some of whom died. Justice Holmes

wrote in Fernandez that our task is to determine “whether

there was any evidence warranting the finding that there

A5

was reasonable ground to believe the accused guilty.” Id.

(emphasis added). Surely the evidence in this case satis-

fied this lenient standard.

This court does not sit to rehear the district court’s

findings. Escobedo v. United States, 623 F.2d 1098, 1101

(5th Cir. 1980). The evidence which the district court

relied upon was properly authenticated by an official of

the U.S. Department of State as required by 18 U.S.C.

§ 3190. If properly authenticated, evidence may be re-

ceived in an extradition case which could not have been

received at a preliminary examination under state law.

Collins v. Leisel, 259 U.S. 309, 313 (1922). Thus it is

immaterial that Demjanjuk had no opportunity to cross

examine the affiants. The only evidentiary function of

the extradition court is to determine whether there is

sufficient evidence to justify holding a person for trial

in another place. We are satisfied that the district court

relied upon admissible evidence in making its determina-

tion in this case.

As noted earlier, Demjanjuk was identified by docu-

mentary evidence as having been at the SS training camp,

Trawniki. Exhibits 5 and 6 were the front and back of

a German document which identified “Iwan Demjanjuk”

as a guard in an SS unit. The heading showed that it

was issued at Trawniki. On appeal Demjanjuk argues

strenuously that the Trawniki documents were forged and

that the government perpetrated a fraud upon the court

by introducing them. This same argument was made in

the denaturalization proceedings. The district court dis-

cussed this issue at some length in its opinion in those

proceedings, and rejected Demjanjuk’s contentions. 518

F.Supp. at 1365-69. This issue was also addressed by the

district court in denying post-judgment motions for relief.

A6

In making these arguments as to the authenticity of

the Trawniki documents, Demjanjuk overlooks one very

important fact. The district court in the extradition pro-

ceedings made a specific finding that the other evidence

identifying Demjanjuk as the guard “Ivan” at Treblinka

was sufficient to support the extradition order without

reference to the Trawniki document. Thus, even if this

documentary evidence had been rejected, the eyewitness

evidence alone was found sufficient. Since the district

court did not rely on the “Trawniki card,” its validity

is not before the court. Of course, if we found any sup-

port in the record for the claim that the government

deliberately offered a forged document as evidence, we

would examine the entire proceedings for other evidence

of fraud. However, the record before us lends no support

to this very serious charge, and we reject it. Witnesses

fully qualified to testify on the subject stated their opin-

ions that the Trawniki decuments were authentic.

C.

One other issue raised by Demjanjuk requires con-

sideration. On appeal Demjanjuk argues that Judge

Battisti, having presided at the denaturalization proceed-

ings, should have recused himself from the extradition

hearing. In making this contention Demjanjuk relies on

28 U.S.C. § 455(a) which requires a judge to disqualify

himself “in any proceeding in which his impartiality might

reasonably be questioned.” The argument is that Judge

Battisti, having found that Demjanjuk committed acts

which required his denaturalization, might reasonably be

considered biased against the same party in a subsequent

extradition action. The problem with this argument is

that in order to be disqualifying, a judge’s alleged bias

A7

must emanate from some “extrajudicial source” rather

than from participation in judicial proceedings. United

States v. Grinnell Corp., 384 U.S, 563, 583 (1966).

Recusal is not required of a judge assigned to consider

a habeas corpus action following conv'ction at a trial over

which the judge presided. In fact Rule 4(a) of the rules

applicable to actions seeking habeas relief from a federal

conviction pursuant to 28 U.S.C. § 2255 requires the peti-

tion to be presented to the judge who presided over the

petitioner’s trial or sentencing. While the present action

was brought under a different habeas corpus statute, 28

U.S.C. § 2241, the reasons for the rule apply equally to

both. Judicial economy is served by requiring a judge

familiar with the case to consider collateral attacks on

the judgment. In the absence of some evidence of actual

bias or prejudice from some source other than his prior

judicial contact with a related case, § 455(a) does not

require a judge to disqualify himself in extradition pro-

ceedings. David v. Attorney General, 699 F.2d 411, 416

(7th Cir.), cert. denied, 464 U.S. 832 (1983). We find

no evidence of actual bias in this case.

Under a local rule of the Northern District of Ohio

Demjanjuk’s habeas corpus action was assigned to Chief

Judge Battisti. The district court entered a memorandum

and order in which it dealt with each of the habeas corpus

claims and concluded that Demjanjuk was not being held

in violation of the Constitution, treaties or laws of the

United States. The effect of the certification to the Secre-

tary of State was stayed and Demjanjuk appealed to this

court.

A8

IT.

A.

The pertinent portions of the treaty (Convention on

Extradition) between the United States and Israel (here-

after the Treaty) found in the first three articles and the

thirteenth article, are set forth:

Article I

Each Contracting Party agrees, under the condi-

tions and circumstances established by the present

Convention, reciprocally to deliver up persons found

in its territory who have been charged with or con-

victed of any of the offenses mentioned in Article

II of the present Convention committed within the

territorial jurisdiction of the other, or outside thereof

under the conditions specified in Article III of the

present Convention.

Article IT

Persons shall be delivered up according to the pro-

visions of the present Convention for prosecution when

they have been charged with, or to undergo sentence

when they have been convicted of, any of the fol-

lowing offenses:

1. Murder.

2. Manslaughter.

3. Malicious wounding; inflicting grievous bodily

harm.

A9

Article ITI

When the offense has been committed outside the

territorial jurisdiction of the requesting Party, extradi-

tion need not be granted unless the laws of the re-

quested Party provide for the punishment of such an

offense committed in similar circumstances.

The words “territorial jurisdiction” as used in this

Article and in Article I of the present Convention

mean: territory, including territorial waters, and

the airspace thereover belonging to or under the con-

trol of one of the Contracting Parties, and vessels

and aircraft belonging to one of the Contracting Parties

or to a citizen or corporation thereof when such vessel

is on the high seas or such aircraft is over the high

seas.

Article XIII

A person extradited under the present Convention

shall not be detained, tried or punished in the territory

of the requesting Party for any offense other than

that for which extradiction has been granted nor be

extradited by that Party to a third State unless:

(Exceptions not applicable).

The Israeli warrant on which the extradition request

was based was issued pursuant to a request which charged

Demanjuk with having “murdered tens of thousands of

Jews and non-Jews” while operating the gas chambers to

exterminate prisoners at Treblinka. It further asserts

that the acts charged were committed “with the intention

of destroying the Jewish people and to commit crimes

against humanity.” The complaint in the district court

Al0

equated this charge with the crimes of “murder and

malicious wounding [and] inflicting grievous bodily harm,”

listed in the Treaty. The warrant was issued pursuant

to a 1950 Israeli statute, the Nazis and Nazi Collaborators

(Punishment) Law. This statute made certain acts, in-

cluding “crimes against the Jewish people,” “crimes against

humanity”

and “war crimes committed during the Nazi

period” punishable under Israeli law. The statute defines

these crimes as follows:

“crime against the Jewish people” means any of the

following acts, committed with intent to destroy the

Jewish people in whole or in part:

1,

2.

3.

7.

killing Jews;

causing serious bodily or mental harm tu Jews;

placing Jews in living conditions calculated to

bring about their physical destruction;

imposing measures intended to prevent births

among Jews;

forcibly transferring Jewish children to an-

other national or religious group;

destroying or desecrating Jewish religious or

cultural assets or values;

inciting to hatred of Jews;

“crime against humanity” means any of the following

acts:

murder, extermination, enslavement, starvation or

deportation and other inhumane acts committed

against any civilian population, and persecution

on national, racial, religious or political grounds;

All

“war crime” means any of the following acts:

murder, ill-treatment or deportation to forced lab-

our or for any other purpose, of civilian population

of or in occupied territory; murder or ill-treat-

ment of prisoners of war or persons on the seas;

killing of hostages; plunder of public or private

property; wanton destruction of cities, towns or

villages; and devastation not justified by military

necessity.

B.

Demjanjuk contends that the district court had no

jurisdiction to consider the request for extradition. He

advances several discrete arguments in support of this

position. As he did in the district court, Demjanjuk main-

tains that the crime he is charged with is not included in the

listing of offenses in the treaty. It is his position that

“murdering thousands of Jews and non-Jews” is not cov-

ered by the treaty designation of “murder.” It is a funda-

mental requirement for international extradition that the

crime for which extradition is sought be one provided for

by the treaty between the requesting and the requested

nation. 18 U.S.C. § 3184; Fernandez v. Phillips, 268 U.S.

at 312. We have no difficulty concluding that “murder”

includes the mass murder of Jews. This is a logical reading

of the treaty language and is the interpretation given the

treaty by the Department of State. That interpretation

is entitled to considerable deference, as this court noted

in Argento v. Horn, 241 F.2d 258, 263 (6th Cir. 1957):

A construction of a treaty by the political department

of the government, while not conclusive upon a court

called upon to construe such a treaty in a matter in-

volving personal rights, is nevertheless of much weight.

[Quoting Charlton v. Kelly, 229 U.S. 447, 468 (1913).]

Al2

Demjanjuk also argues that the district court had no

jurisdiction because there is a requirement of “double

criminality” in international extradition cases. The Re-

statement of the Foreign Relations Law of the United

States, Tentative Draft No. 5 (1984) (hereafter “Restate-

ment”), provides in § 487:

(1) No person may be extradited pursuant to

§ 486 [The Basic Rule]

(c) If the offense with which he is charged

or of which he has been convicted is not punish-

able as a serious crime both in the requesting and

in the requested state.

The Supreme Court stated in Collins v. Loisel, 25 U.S. 309,

311 (1922), “It is true that an offense is extraditable only

if the acts charged are criminal by the laws of both coun-

tries.” See also Brauch v. Raiche, 618 F.2d 843, 847 (1st

Cir. 1980) (“The requirement that the acts alleged be

criminal in both jurisdictions is central to extradition

sO

We believe the double criminality requirement was

met in this case. As the Court stated in Collins v. Loisel:

The law does not require that the name by which

the crime is described in the two countries shall be

the same; nor that the scope of the liability shall be

coextensive, or, in other respects, the same in the

two countries. It is enough if the particular act

charged is criminal in both jurisdictions.

259 U.S. at 312 (Emphasis added). If the acts upon which

the charges of the requesting country are based are also

proscribed by a law of the requested nation, the require-

MW tae oT

ered

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ment of double criminality is satisfied. Murder is a crime

in every state of the United States. The fact that there

is no separate offense of mass murder or murder of tens

of thousands of Jews in this country is beside the point.

The act of unlawfully killing one or more persons with

the requisite malice is punishable as murder. That is

the test. The acts charged are criminal both in Israel and

throughout the United States, including Ohio. Dem-

janjuk’s argument that to interpret murder to include

murder of Jews would amount to judicial amendment of

the Treaty is absurd and offensive.

IV.

A.

A separate jurisdictional argument concerns the ter-

ritorial reach of the statutory law of Israel. Demjanjuk

relies on two facts to question the power of the State of

Israel to proceed against him. He is not a citizen or resi-

dent of Israel and the crimes with which he is charged

allegedly were committed in Poland. He also points out

that the acts which are the basis of the Israeli arrest war-

rant allegedly took place in 1942 or 1943, before the State

of Israel came into existence. Thus, Demjanjuk maintains

that the district court had no jurisdiction because Israel

did not charge him with extraditable offenses.

The scope of this nation’s international extradition

power and the function of the federal courts in the extra-

dition process are set forth in 18 U.S.C. § 3184:

§ 3184. Fugitives from foreign country to United

States

Whenever there is a treaty or convention for

extradition between the United States and any foreign

Al4

government, any justice or judge of the United States,

or any magistrate authorized so to do by a court of

the United States, or any judge of a court of record

of general jurisdiction of any State, may, upon com-

plaint made under oath, charging any person found

within his jurisdiction, with having committed within

the jurisdiction of any such foreign government any

of the crimes provided for by such treaty or conven-

tion, issue his warrant for the apprehension of the

person so charged, that he may be brought before such

justice, judge, or magistrate, to the end that the evi-

dence of criminality may be heard and considered.

If, on such hearing, he deems the evidence sufficient

to sustain the charge under the provisions of the proper

treaty or convention, he shall certify the same, to-

gether with a copy of all the testimony taken before

him, to the Secretary of State, that a warrant may

issue upon the requisition of the proper authorities

of such foreign government, for the surrender of such

person, according to the stipulations of the treaty or

convention; and he shall issue his warrant for the

commitment of the person so charged to the proper

jail, there to remain until such surrender shall be

made.

Section 3184 clearly provides that the extradition com-

plaint must charge the person sought to be extradited with

having committed crimes “within the jurisdiction of any

such foreign government,” that is, the requesting state.

This same condition is reflected in § 486(a) of the Restate-

ment, which requires the requested state to comply with

the request to arrest anc ‘eliver a person sought “on

charges of having committed a serious crime within the

jurisdiction of the requesting state.” The question is

whether the murder of Jews in a Nazi extermination camp

Ce a een

Al5

in Poland during the 1939-1945 war can be considered,

for purposes of extradition, crimes within the jurisdiction

of the State of Israel.

B.

We look first at the Treaty. Article III provides that

when an offense has been committed outside the terri-

torial jurisdiction of the requesting party, “extradition

need not be granted unless the laws of the requested party

provide for the punishment of such an offense committed

in similar circumstances.” Demjanjuk maintains that the

“need not” language of Article III prohibits extradition

in this case because the laws of the United States do not

provide punishment for war crimes or crimes against hu-

manity. He places principal reliance on Valentine v.

United States ex rel. Neidecker, 299 U.S. 5 (1936). In

Valentine the treaty provided in part, “Neither of the

coniracting parties shall be bound to deliver up its own

citizens or subjects under the stipulations of this conven-

tion.” Id. at 7. The Supreme Court concluded that this

language did not grant discretion to the government to

extradite citizens of the United States. Demjanjuk argues

that the “need not . .. unless” language in the Treaty

presently before us similarly precludes an exercise of

discretion to extradite for any offense for which the laws

of the United States provide no punishment under similar

circumstances.

Similar arguments were made by the petitioners in

In re Assarsson, 635 F.2d 1237 (7th Cir. 1980), cert. denied,

451 U.S. 938 (1981), and In re Assarsson, 687 F.2d 1157

(8th Cir. 1982). ‘These cases involved two brothers who

were charged in Sweden with several crimes, including a

scheme to defraud an insurance company by causing a

Al6

warehouse in Copenhagen, Denmark to be burned. The

extradition treaty between the United States and Sweden

contained language identical to that in Article III of the

United States-Israeli treaty. The Seventh Circuit con-

strued “need not . . . unless” to mean that the decision

whether to extradite is discretionary where laws of the

requested party do not provide punishment of the de-

scribed offense under similar circumstances. The court

effectively distinguished Valentine as dealing with an

unusual treaty which when read in its entirety was logi-

cally found to prohibit the extradition of U.S. citizens

rather than to grant discretion. 635 F.2d at 1245. The

Eighth Circuit adopted the same construction in upholding

the denial of habeas corpus relief to the second brother.

687 F.2d at 1163-64.

Valentine construed the treaty to grant no discretion

because it was silent on this question whereas many other

treaties explicitly granted discretion, “[T]he fact that

our Government had favored extradition treaties without

excepting citizens puts the omission of the qualifying grant

of discretionary power in a strong light.” 299 U.S. at 13.

No comparison with other existing treaties requires this

strict reading of the Treaty in the present case.

We agree with the two courts which have construed

the language which is common to the treaties with Sweden

and Israel. In our view the treaty language makes two

things clear: (1) the parties recognize the right to request

extradition for extraterritorial crimes, and (2) the re-

quested party has the discretion to deny extradition if

its laws do not provide for punishment of offenses com-

mitted under similar circumstances. This provision does

not affect the authority of a court to certify extraditability;

it merely distinguishes between cases where the requested

oo

Al7

party is required to honor a request and those where it

has discretion to deny a request. That the specific offense

charged is not a crime in the United States does not nec-

essarily rule out extradition.

The Israeli statute under which Demjanjuk was charged

deals with “crimes against the Jewish people,’ “crimes

against humanity” and “war crimes” committed during

the Nazi years. It is clear from the language defining the

crimes, and other references to acts directed at persecuted

persons and committed in places of confinement, that

Israel intended to punish under this law those involved

in carrying out Hitler’s “final solution.” This was made

explicit in the prosecution of Adolph Eichmann in 1961.

Attorney General v. Eichmann, 36 I.L.R. 277 (Sup. Ct.

Israel 1962), reprinted in 2 Friedman, The Law of War at

1657-1687 (1972). Such a claim of extraterritorial juris-

diction over criminal offenses is not unique to Israel. For

example, statutes of the United States provide for punish-

ment in domestic district courts for murder or manslaugh-

ter committed within the maritime jurisdiction (18 U.S.C.

§ 1111) and murder or manslaughter of internationally

protected persons wherever they are killed (18 U.S.C.

§ 1116(c)). We conclude that the reference in 18 U.S.C.

§ 3184 to crimes committed within the jurisdiction of the

requesting government does not refer solely to territorial

jurisdiction. Rather, it refers to the authority of a nation

to apply its laws to particular conduct. In international

law this is referred to as “jurisdiction to prescribe.” Re-

statement § 401(1).

Cc.

The law of the United States includes international

law. The Paquete Habana, 175 US. 667, 712 (1900). Inter-

Al8

national law recognizes a “universal jurisdiction” over

certain offenses. Section 404 of the Restatement defines

universal jurisdiction:

§ 404: Universal Jurisdiction to Define and Punish

Selected Offenses

A state may exercise jurisdiction to define and

punish certain offenses recognized by the community

of nations as of universal concern, such as piracy,

slave trade, attacks on or hijacking of aircraft, geno-

cide, war crimes, and perhaps terrorism, even where

none of the bases of jurisdiction indicated in § 402

is present.

This “universality principle” is based on the assumption

that some crimes are so universally condemned that the

perpetrators are the enemies of all people. Therefore, any

nation which has custody of the perpetrators may punish

them according to its law applicable to such offenses. This

principle is a departure from the general rule that “the

character of an act as lawful or unlawful must be de-

termined wholly by the law of the country where the act

is done.” American Banana Co, v. United Fruit Co., 213

U.S. 347, 356 (1909).

The wartime allies created the Internationa] Military

Tribunal which tried major Nazi officials at Nuremberg

and courts within the four occupation zones of post-war

Germany which tried lesser Nazis. All were tried for

committing war crimes, and it is generally agreed that

the establishment of these tribunals and their proceedings

were based on universal jurisdiction. E.g. Sponsler, The

Universality Principle of Jurisdiction and the Threatened

Trials of American Airmen, 15 Loy.L.Rev. 43, 48-51 (1968-

69).

Al19

Demjanjuk argues that the post-war trials were all

based on the military defeat of Germany and that with

the disestablishment of the special tribunals there are no

courts with jurisdiction over alleged war crimes. This

argument overlooks the fact that the post-war tribunals

were not military courts, though their presence in Germany

was made possible by the military defeat of that country.

These tribunals did not operate within the limits of tra-

ditional military courts. They claimed and exercised a

much broader jurisdiction which necessarily derived from

the universality principle. Whatever doubts existed prior

to 1945 have been erased by the general recognition since

that time that there is a jurisdiction over some types of

crimes which extends beyond the territorial limits of any

nation.

Turning again to the Restatement, § 443 appears to

apply to the present case:

§ 443. Jurisdiction to Adjudicate in Aid of Universal

and Other Non-Territorial Crimes.

A state’s courts may exercise jurisdiction to en-

force the state’s criminal laws which punish universal

crimes (§ 404) or other non-territorial offenses within

the state’s jurisdiction to prescribe (§§ 402-403).

Israel is seeking to enforce its criminal law for the punish-

ment of Nazis and Nazi collaborators for crimes universally

recognized and condemned by the community of nations.

The fact that Demjanjuk is charged with committing these

acts in Poland does not deprive Israel of authority to bring

him to trial.

Further, the fact that the State of Israel was not in

existence when Demjanjuk allegedly committed the of-

A20

fenses is no bar to Israel’s exercising jurisdiction under

the universality principle. When proceeding on that ju-

risdictional premise, neither the nationality of the accused

or the victim (s), nor the location of the crime is significant.

The underlying assumption is that the crimes are offenses

against the law of nations or against humanity and that

the prosecuting nation is acting for all nations, This being

so, Israel or any other nation, regardless of its status in

1942 or 1943, may undertake to vindicate the interest of

all nations by seeking to punish the perpetrators of such

crimes.

D.

We conclude that the jurisdictional challenges to the

district court’s order must fail. The crime of murder is

clearly included in the offenses for which extradition is

to be granted under the treaty. Murder is a crime both

in Israel and in the United States and is included in the

specifications of the Nazis and Nazi Collaborators (Punish-

ment) Law; the requirement of “double criminality” is

met; and, the State of Israel has jurisdiction to punish for

war crimes and crimes against humanity committed out-

side of its geographic boundaries.

Though it was not explicitly argued, we have consid-

ered whether recognition of the power of Israeli courts to

punish for war crimes committed outside of its national

territory violates any right of Demjanjuk under the Con-

stitution of the United States. Demjanjuk had notice

before he applied for residence or citizenship in the United

States that this country, by participating in post-war

trials of German and Japanese war criminals, recognized

the universality principle. Israel has chosen to proceed

under that principle, and we do not supervise the conduct

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A2l

of another judicial system. To do so “would directly con-

flict with the principle of comity upon which extradition

is based.” Jhirad v. Fernandina, 536 F.2d 478, 485 (2d

Cir.), cert. denied, 429 U.S. 833 (1976). In the absence

of any showing that Demjanjuk will be subjected to pro-

cedures “antipathetic to a federal court’s sense of decency,”

Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir.), cert. denied,

364 U.S. 851 (1960), this court will not inquire into the

procedures which will apply after he is surrendered to

Israel. There is absolutely no showing in this record that

Israel will follow procedures which would shock this

court’s “sense of decency,” United States ex rel. Bloomfield

v, Gengler, 507 F.2d 925, 928 (2d Cir. 1974).

V.

The remaining inquiry relates to how the “principle of

specialty” applies to this case. This principle requires

that the requesting country not prosecute for crimes listed

in the treaty but for which extradition was not granted.

Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.), cert.

dismissed, 414 U.S. 884 (1973). It is also a condition found

in Article XIII of the Treaty, which provides that a person

extradicted thereunder shall not be tried or punished by

the requesting party “for any offense other than that for

which extradition has been granted.”

The district court clearly certified that Demjanjuk

was subject to extradition solely on the charge of murder.

Though some of the acts which Demjanjuk is charged

with may also constitute other offenses listed in the treaty,

he may be tried in Israel only on that charge. However,

the particular acts of murder for which he may be tried

depend upon Israeli law. Israel may try him under the

provisions of the Nazis and Nazi Collaborators (Punish-

A22

ment) Law for “crimes against the Jewish people” (“kill-

ing Jews,” a species of murder), “crimes against humanity”

(“murder . . . committed against any civilian population” )

and “war crimes” (“murder ... of civilian population of or

in occupied territory”). The principle of specialty does

not impose any limitation on the particulars of the charge

so long as it encompasses only the offense for which ex-

tradition was granted.

We have discussed the principle of specialty because

it was argued by Demjanjuk and we have attempted to

deal with every issue raised. However, we feel constrained

to note that there is a serious question whether Demjanjuk

has standing to assert the principle of specialty. The right

to insist on application of the principle of specialty belongs

to the requested state, not to the individual whose extradi-

tion is requested. Berenguer v. Vance, 473 F.Supp. 1195,

1197 (D.D.C. 1979). See also Shapiro v. Ferrandina, 478

F.2d at 906, where the court recognizes this rule of inter-

national law while proceeding in a habeas appeal to remedy

the failure of the magistrate to separate extraditable and

non-extraditable offenses.

CONCLUSION

The district court did not err in denying Demjanjuk’s

petition for a writ of habeas corpus. Under established

principles of international law the request by the State

of Israe] for extradition of Demjanjuk was within the

provisions of the Treaty. The district court also correctly

determined that it had jurisdiction of the matter and that

the evidence presented was sufficient to sustain the charge

as required by 18 U.S.C. § 3184. The district court prop-

erly certified to the Secretary of State that Demjanjuk is

subject to extradition to Israe!.

—

eh 7

2S RE

A23

Neither the district court nor this court is empowered

to order the extradition of any person. Extradition is an

act of the Executive Branch. “The ultimate decision to

extradite is a matter within the exclusive prerogative of

the Executive in the exercise of its powers to conduct for-

eign affairs.” Escabedo v. United States, 623 F.2d at 1105

(citations omitted). A decision to attach conditions to an

order of extradition is within the discretion of the Secre-

tary of State, not the courts.

The judgment of the district court is affirmed.

A24

MEMORANDUM AND OPINION OF THE

UNITED STATES DISTRICT COURT

(Filed May 17, 1985)

No. C85-1226

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN DEMJANJUK,

Petitioner,

VS.

JOSEPH PETROVSKY, Warden, et al., Federal Prison

Medical Facility Springfield, Mo.

Respondents.

MEMORANDUM OPINION AND ORDER

BattistI, C.J.

This matter is before the Court today on John Dem-

janjuk’s Petition for Writ of Habeas Corpus (filed April 25,

1985) challenging the April 15, 1985 certificate of extra-

ditability.’

1. John Demjanjuk’s counsel filed a Petition for a Writ of

Habeas Corpus by a Prisoner in Federal Custody in the Northern

District of Ohio on April 25, 1985. The petition was assigned

to the Honorable Thomas D. Lambros under the rendom as-

signment system which is the standard operating procedure in

this District. L. Civ. R. 7.07. Judge Lambros transferred the

petition to this Court as a “related matter”, pursuant to Local

Civil Rule 7.09(3).

Rule 7.09(3) provides that:

Subsequent proceedings in civil cases and in criminal cases

(including petitions under 28 U.S.C. Section 2255) shall be

assigned to the judge who heard the originai case.

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A25

L

In October of 1983, the State of Israel requested the

extradition of John Demjanjuk from the United States to

stand trial in Israel for murder and other offenses alleged

under the Nazis and Nazi Collaborators (Punishment)

Law, sections 1-4, pursuant to an Arrest Warrant, issued

by Judge A.M. Simcha of the Magistrates Court, Jerusa-

lem, Israel on October 18, 1983. The request was based

upon the Convention on Extradition between the Govern-

ment of the United States of America and the Government

of the State of Israel. T.ILAS. 5476, 14 US.T. 1717

(entered into force December 5, 1963) [hereinafter the

“Treaty”]. Acting on behalf of Israel, the United States

government filed a Complaint in the Northern District of

Ohio seeking the extradition of John Demjanjuk to Israel,

on November 18, 1983. The extradition matter was as-

signed to this Court, as a matter related to the denatural-

ization proceedings against John Demjanjuk over which

this Court presided. United States v. Demjanjuk, 518

F. Supp. 1362 (N.D. Ohio 1981), aff'd 680 F.2d 32 (6th

Cir. 1982) cert. denied, 459 U.S. 1036 (1982), pursuant to

Local Civil Rule 7.09(4)(c) (N.D. Ohio).?

2. This extradition case originally was assigned to this

judge consistent with standard district court procedure, as stated

in the Local C vil Rules of this district. At the time the gov-

ernment filed its Complaint, this Court had Demjanjuk’s First

Motion to Vacate Judgment in the denaturalization proceeding

under advisement. Local Civil Rule (N.D. Ohio) 7.09(4)(c)

(Assignment of Cases other than by Lot) provides, in relevant

part:

(4) Cases related to cases already assigned to a judge

shall be assigned or transferred to said judge. Related cases

are defined as follows:

* * *

(c) Civil cases are deemed related when a filed case (i)

relates to property involved in an earlier numbered pend-

ing suit, (ii) involves the same issue or issues of fact or

(Continued on following page)

/

A26

After the Court received extensive briefing by both

the parties and the amicus curiae, the International Human

Rights Group, the extradition hearing required by 18

U.S.C. § 3184 was held in two parts. On December 17,

1984, the question of whether a United States civilian

court has subject matter jurisdiction in an extradition pro-

ceeding where the crimes alleged occurred during war-

time, as well as several preliminary issues, was addressed.

Matter of Demjanjuk, 603 F. Supp. 1463, 1465 (N.D. Ohio

1984). On February 21, 1985, this Court found that it

did have subject matter jurisdiction to hear and decide

the extradition matter. Matter of Demjanjuk, 603 F. Supp.

1468, 1469 (N.D. Ohio 1985). On March 12, 1985, the

hearing on all other issues was held.

On April 15, 1985, this Court issued an opinion which

addresses the numerous issues of facts and law presented

by the extradition request and certifies to the Secretary

of State that John Demjanjuk is extraditable to the State

of Israel. The certification states that the John Demjanjuk

brought before the Court is the one named in the Israeli

Extradition Request and that competent and sufficient

evidence has been presented to sustain charges of “mur-

der”, which are extraditable offenses pursuant to the

Treaty. Order of April 15, 1985 at 51-52.

Petitioner John Demjanjuk argues that he is unlaw-

fully imprisoned because the extradition court has acted

Footnote continued—

grows out of the same transaction or subject matter as a

pending civil suit,... (emphasis added.)

Since the extradition case involves some of the same parties

and arose out of some of the same events as the denaturalization

proceedings, it was assigned to this judge.

In November of 1983, Demjanjuk’s First Motion to Vacate

was denied. United States v. Demjanjuk, 103 F.R.D. 1 (N.D.

Ohio 1983).

A27

“in violation of the Constitution, laws and treaties of the

United States”. Petition for a Writ of Habeas Corpus by

a Prisoner in Federal Custody at 2 (filed April 25, 1985)

[Hereinafter “(Habeas Petition”]. Petitioner argues that:

jurisdiction over the extradition proceedings was taken

contrary to the Constitution and, thus, the evidence of

identity and probable cause was improperly before the

is outside the terms of the Treaty”, id. at iii, and peti-

tioner is not properly charged, as required by 18 U.S.C.

§ 3184, id. at iii.

II. RECUSAL

Petitioner John Demjanjuk’s attorneys have orally

requested that this Court recuse itself from hearing the

petition for writ of habeas corpus. They argue that it

would be improper or inappropriate for this Court to,

in effect, review itself by examining the validity of the

April 15, 1985 certification of extraditability. In addi-

tion, they contend that there would be an appearance of

bias and impropriety for this Court to rule on the peti-

tion for writ of habeas corpus. Presumably, they base

their argument on 28 U.S.C. § 455(a) which provides:

Any justice, judge, or magistrate of the United States

shall disqualify himself in any proceeding in which

his impartiality might reasonably be questioned.

Petitioner’s request is denied.

First, petitioner’s argument has been expressly re-

jected by at least one circuit court in the context of a

petition for a writ of habeas corpus attacking extradition

proceedings. In David v. Attorney General of United

States, 699 F.2d 411 (7th Cir. 1983), David appealed the

district court’s denial of his petition for writ of habeas

A28

corpus. Judge Foreman, of the Eastern District of Illinois,

had certified David as extraditable under the French-

American Extradition Treaty on charges of willful homi-

cide and attempted willful homicide. Subsequently, Judge

Foreman denied David’s habeas petition. In affirming the

the district court’s denial of the writ of habeas corpus,

the Seventh Circuit found, inter alia, that Judge Foreman

had not violated 28 U.S.C. §455(a) by considering the

habeas petition. The Seventh Circuit stated that a judge is

not required to recuse himself from hearing a habeas pe-

tition which attacks an extradition hearing over which he

presided. The Seventh Circuit found support for its de-

cision in the procedures employed in actions brought

under 28 U.S.C. § 2255* and in cases where a district judge

is reversed, or has an order vacated, and the case is re-

manded to the judge for further proceedings. Id. at 416.

Second, while this case involves a petition brought

pursuant to 28 U.S.C. § 2241 and the Rules Governing

§ 2255 Proceedings for United States District Court do

not govern, Rule 4(a) of the § 2255 Rules and judicial

precedent in cases involving § 2255 petitions for habeas

corpus provide persuasive evidence that there is no im-

propriety in this Court’s accepting jurisdiction in this

case. Rule 4(a) provides:

Reference to judge; dismissal or order to answer.

The original motion shall be presented promptly to

the judge of the district court who presided at the

movant’s trial and sentenced him, or, if the judge

who imposed sentence was not the trial judge, then

it shall go to the judge who was in charge of that

part of the proceedings being attacked by the movant.

If the appropriate judge is unavailable to consider the

3. See infra at 5-6 [A28-A29].

A29

motion, it shall be presented to another judge of the

district in accordance with the procedure of the court

for the assignment of its business.

There are numerous cases where a trial judge in a criminal

matter has decided a § 2255 proceeding in accordance with

Rule 4 and has had his refusal to recuse himself upheld.

Accord, e.g., Burris v. United States, 430 F.2d 399 (7th

Cir. 1970), cert. denied, 401 U.S. 921 (1970); Lucero v.

United States, 425 F.2d 173 (9th Cir. 1970); Dukes v.

United States, 407 F.2d 863 (9th Cir. 1969); Briscoe v.

United States, 129 U.S. App. D.C. 146, 391 F.2d 984 (1968) ;

Mirra v. United States, 379 F.2d 782 (2nd Cir. 1967), cert.

denied, 389 U.S. 1022; United States v. Smith, 337 F.2d 49

(4th Cir. 1964), cert. denied, 381 U.S. 916, Simmons v.

United States, 302 F.2d 71 (3d Cir. 1962); Martin v. United

States, 273 F.2d 775, 777 (10th Cir. 1960), cert. denied, 365

U.S. 853 (1961); Carvell v. United States, 173 F.2d 348

(4th Cir. 1949); see also Machibroda v. United States, 368

U.S. 487 (1962). But see Halliday v. United States, 380

F.2d 270 (1st Cir. 1967). These courts have reasoned that

the trial judge’s familiarity with the facts and circum-

stances surrounding the original trial makes it desirable

for him to deal with the § 2255 petitions. Burris, 430 F.2d

at 402.

Section 2255 was inserted in the judicial code to avoid

the unseemly practice of having attacks upon the regu-

larity of trials made before a coordinate judge. Carvell,

173 F.2d at 348; Smith, 337 F.2d at 52 (quoting Parker,

“Limiting the Abuse of Habeas Corpus”, 8 F.R.D. 171,

172-73 (1949)). Section 2255 was designed to eliminate

the intolerable situation in which another district judge

would consider evidence outside the original trial record

and be forced to weigh the testimony of the original trial

A30

judge against the word of a convicted felon.* United States

v, Edwards, 152 F. Supp. 179, 182 (D.D.C. 1957).

Such factors are equally applicable in § 2241 habeas

corpus proceedings initiated to attack a certificate of ex-

traditability. This Court is familiar with the facts and

circumstances surrounding the consideration of Israel’s

extradition request and related judicial proceedings. The

likelihood of being misled by false allegations as to what

occurred is slight. Furthermore, if this Court determines

the merit of Demjanjuk’s habeas petition, this District will

avoid the unseemly spectacle of one district judge weigh-

ing the determination of a fellow district court judge

against legal arguments and factual allegations made by

an alleged felon.

Third, the Local Civil Rules for the Northern District

of Ohio provide that cases “related” to cases already as-

signed to a judge should be assigned to that judge. Local

Civil Rule 7.09. Judge Thomas Lambros determined that

Demjanjuk’s habeas petition is related to Case No, 83-

Misc. 349 (the extradition proceeding) and thus, that Local

Rule 7.09(3) “mandates the assignment of this action to

the judge who heard the original case.” Order of April

25, 1985. Pursuant to the Local Rules of this District, the

habeas petition is properly before this Court.

It is appropriate and reasonable for this Court to

decide the habeas petition, in part because expeditious

action is possible because of the Court’s prior experience

in this matter. See Matter of Demjanjuk, 584 F. Supp.

1321 (N.D. Ohio 1984) (motion for recusal in extradition

4. Prior to the adoption of § 2255, since evidence outside

of the record was heard at the habeas corpus petition hearing, the

trial judge at times became a witness, by deposition or otherwise,

at that hearing.

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Se NN ee ee ee Se ee ee oe ee ey a in

A31

proceedings denied; “with nothing more, this Court’s rul-

ings or action in previous related cases will not “support

a motion for recusal.”). It is in the interests of justice

and friendly foreign relations to complete judicial ex-

amination of this extradition matter seasonably. With

the filing of this Order, the matter will now be ripe for

review by the Sixth Circuit Court of Appeals. 28 U.S.C.

§ 2253.

III. WRITS OF HABEAS CORPUS IN

EXTRADITION CASES

The decision of a judge or magistrate in an extradition

case is not itself appealable. Collins v. Miller, 252 U.S. 364

(1920); Shapiro v. Ferrandina, 478 F.2d 804, 901 (2d Cir.

1973); Jimenez v. Aristeguieta, 290 F.2d 105 (5th Cir.

1961). Rather, the alleged felon may only attack the

extraditability decision collaterally, through a writ of

habeas corpus. Fernandez v. Phillips, 268 U.S. 310 (1924);

Shapiro, 478 F.2d at 901.

An extradition proceeding is in the nature of a pre-

liminary hearing, Merino v. United States Marshal, 326

F.2d 5, 12 (C.D. Cal. 1963); the government need only

establish that competent and adequate evidence shows

that the accused has committed the offenses charged pur-

suant to Treaty, 18 U.S.C. § 3184. It is not the purpose

of an extradition hearing to determine the accused’s guilt.

Collins v. Loisel, 259 U.S. 309, 316 (1922). Rather, after

the alleged felon has a hearing, where he is given the op-

portunity to establish why he is nonextraditable in the

requested country, he still can have his day in court,

when he can prove his innocence in a trial in the courts

of the requesting country. Habeas corpus proceedings can-

not take the place of a direct appeal, Fernandez, 478 F.2d

A32

at 312, and are not a means for rehearing what the § 3184

judge has already decided, id.

Thus, the scope of review of an extradition decision

through habeas corpus proceedings is very limited.

Habeas corpus is available only to inquire whether

the magistrate had jurisdiction, whether the offence

charged is within the treaty and, by a somewhat

liberal extension, whether there was any evidence

warranting the finding that there was reasonable

ground to believe the accused guilty.

Fernandez, 268 U.S. at 312; Accord, Charlton v. Kelly,

229 U.S. 447 (1913); Grin v. Shine, 187 U.S. 180 (1902);

Prushinowski v. Samples, 734 F.2d 1016, 1018 (4th Cir.

1984); Shapiro, 478 F.2d at 901; Jiminez v. Aristeguieta,

311 F.2d 547, 555 (Sth Cir. 1962).

IV. NO ORDER TO SHOW CAUSE NECESSARY

Title 18 U.S.C. § 2243 provides that a court entertain-

ing an application for a writ of habeas corpus

shall forthwith award the writ or issue an order di-

recting the respondent to show cause why the writ

should not be granted, unless it appears from the ap-

plication that the applicant or person detained is not

entitled thereto.

Under this provision, a district court has a duty to screen

out a habeas petition which should be dismissed for lack

of merit on its face. Allen v. Perini, 424 F.2d 134, 141

(6th Cir. 1970). Accord, Aubut v. State of Maine, 431

F.2d 688, 689 (1st Cir. 1970) (a habeas petition “should

set out substantive facts that will enable the court to see

a real possibility of constitutional error”.)

es

A33

In the instant case, it appears from the application for

a writ of habeas corpus that John Demjanjuk is not entitled

thereto. When the application is considered in conjunc-

tion with the motions, the files and the records in the ex-

tradition case and the Order of April 15, 1985, it appears

conclusively that Demjanjuk is entitled to no relief. Thus,

there is no need for consideration of a return on the writ.

18 U.S.C. § 2243. In this case, the allegations do not in-

volve factual matters outside the extradition proceedings’

records or beyond the knowledge of this Court. Requir-

ing a return from the Government would not contribute

to the resolution of issues or the achievement of justice.

Accord Allen, 424 F.2d at 142.

V. HABEAS PETITION DENIED

As will be shown below, the issues raised by Dem-

janjuk’s habeas petition have been considered in depth

and ruled on by this Court during the extradition proceed-

ings. Matter of Demjanjuk, 603 F. Supp. at 1469, 1473-79

(subject matter jurisdiction); Order of April 15, 1985 at

18-27 (Israel’s assertion of jurisdiction in conformity with

United States jurisdictional principles and international

law), 28-35 (“murder” charges within the Treaty), 3-17

(identification) and 35-41 (“competent and adequate evi-

dence” or “probable cause” to believe respondent com-

mitted the acts charged). Petitioner Demjanjuk has pre-

sented no new arguments or information that would cause

this Court to reconsider its findings and legal conclu-

sions.

First, petitioner again asserts that this Court lacked

jurisdiction in the extradition proceedings because the

crimes alleged are “war crimes” and occurred outside of

the territorial jurisdiction of Israel. Habeas Petition at

3-6, 8-9, 9-10. Petitioner attempts to distinguish away

A34

the precedent and legal reasoning used by this Court in

finding that it had jurisdiction to determine whether pe-

titioner is extraditable, Again, petitioner’s arguments are

misplaced. Indeed, the Court is disturbed that petitioner

blatantly misconstrues this Court’s prior opinions. Pe-

titioner states that “the Genocide Convention cannot con-

fer subject matter jurisdiction over the petitioner.”

Habeas Petition at 9. Of course, petitioner is correct.

But the contention is irrelevant—the Court does not rely

on the Convention in determining that it has subject mat-

ter jurisdiction over the extradition proceedings. This

Court has already fully explored all of petitioner’s argu-

ments pertaining to subject matter jurisdiction. Matter

of Demjanjuk, 603 F. Supp. 1468, 1469 (N.D. Ohio 1985);

603 F. Supp. 1473-1479 (N.D. Ohio 1985). Nothing has

been presented to change the earlier decisions.

Second, petitioner argues that the Court changed the

terms of the Treaty by finding him extraditable for “gen-

ocide”. Habeas Petition at iii, 7-8. He states that

By asserting acceptance of Universal jurisdiction over

the Murder of Jews, the extradition court supplied

terms to the United States-Israel Extradition Treaty,

in plain contravention of its governmental role, Chero-

kee Tobacco, supra, Ambiable Isabella, supra. By do-

ing so, it unlawfully supplied a casus omissus in the

treaty.

This Court did not fill a gap in the Treaty and did not

find petitioner extraditable for genocide. Indeed, the

Court specifically found petitioner extraditable only for

multiple charges of “murder”, crimes for which petitioner

is charged under the Israeli statute. Order of April 15,

1985 at 29-35. The Court found that Demjanjuk is charged

with murder, pursuant to sections 1(b) and 2(f) of the

Israeli statute, that these charges are recognized as crimes

A35

under Article II of the Treaty, id. at 30 and that, pursuant

to Article III, petitioner is legally extraditable to Israel.

Id. at 32. Petitioner’s argument fails.

Third, petitioner contends that “no evidence was pre-

sented to the extradition court that petitioner was Ivan

Grezny”. A habeas court cannot find for the petitioner

because of lack of probable cause if any evidence as to

probable cause exists. The issue of identifying the ac-

cused felon is not even properly before a habeas court.

Supra at 7. In light of the numerous, detailed eyewitness

accounts which identify John Demjanjuk as a Treblinka

guard and set forth with great particularity descriptions of

multiple murders he is alleged to have committed, Order

of April 15, 1985, at 4-17, 35-41, petitioner’s claim that

““petitioner’s connection with the identity or the genocidal

crimes of Ivan Grozny was. . . never demonstrated by even

a scintilla of evidence”, Habeas Petition at 9, is frivolous

and offensive.

Lastly, petitioner merely asserts, without any substan-

tiation, that the document on which basis petitioner is

sought does not charge him, as required by 18 U.S.C.

3184, id. at iii, and claims that the documents contained

within the Israeli Extradition Request are not properly

certified, id. at 2. The finding that petitioner was prop-

erly “charged” by Israeli authorities with extraditable of-

fenses within the meaning of the treaty is not reviewable

on habeas corpus. Matter of Assarsson, 687 F.2d 1157, 1160

(8th Cir. 1982); Matter of Assarsson, 635 F.2d 1237, 1240-

42 (7th Cir. 1980). Were this habeas court to look at

the merits of petitioner’s argument, however, the Israeli

Extradition Request does contain both a Request to Issue

Warrant of Arrest, presented to the Magistrate Court in

Jerusalem (Octobe ‘°, 1983) and a Warrant of Arrest,

issued by Judge A... Simcha of the Magistrate Court

A36

(October 18, 1983) which set forth the charges against

Demjanjuk. Pursuant to 18 U.S.C. § 3184 and the Treaty,

this is sufficient. The Treaty does not include as a prereq-

uisite to extradition the filing of formal charges and an

extradition court need not find that an accused felon

is charged in the same manner as would be required by

United States criminal law nor need it review compliance

with foreign criminal procedure. Accord Assarsson, 635

F.2d at 1242, 1244; see also Grin, 187 U.S. at 190-94.

Petitioner presents no argument or evidence to sub-

stantiate his claim that the certification of documents is

improper, nor did he do so at the March 12, 1985 Extradition

Hearing. See Transcript of March 12, 1985 Hearing at 111-

25, 126-29, 164-166. Furthermore, questions of certification

and authentication are not properly before a habeas court.

Were this Court to examine the question again, however, it

would still find the documents properly certified and au-

thenticated. Order of April 15, 1985 at 4.

CONCLUSION

Petitioner has in no way met his burden of showing

that he is in custody in violation of the “Constitu-

tion or laws or treaties of the United States.” i8 U.S.C.

§ 2241(c)(3). Accord Allen v. Perini, 424 F.2d 134, 138

(6th Cir. 1970).

The application for writ of habeas corpus is hereby

denied.

The effect of certification of extraditability is stayed

until June 4, 1985 at 10:00 a.m. D.S.T. to afford the parties

the opportunity to apply for whatever relief they deem

appropriate.

IT IS SO ORDERED.

/s/ Frank J. BATTISTI

Chief Judge

A37

JUDGMENT ENTRY OF THE UNITED STATES

DISTRICT COURT

(Filed May 17, 1985)

No. C85-i1226

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN DEMJANJUK,

Petitioner,

vs.

JOSEPH PETROVSKY, Warden, et al.,

Respondents.

JUDGMENT ENTRY

BatTistI, C.J.

In accordance with the Memorandum Opinion filed on

May 17, 1985,

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED that petitioner’s application for a writ of habeas

corpus is denied.

IT IS FURTHER ORDERED that the effect of certifica-

tion of extraditability is stayed until June 4, 1985 at

10:00 a.m. D.S.T. to afford the parties the opportunity to

apply for whatever relief they deem appropriate.

/s/ Frank J. BAtrTist1

Chief Judge

A38

MEMORANDUM OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT

(Filed April 15, 1985)

Misc. No. 83-349

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN THE MATTER OF THE

EXTRADITION OF

JOHN DEMJANJUK

aka JOHN IVAN DEMJANJUK,

aka JOHN IVAN DEMYANYUK.

MEMORANDUM OPINION AND ORDER

Battisti, C.J,

On October 31, 1983, the Government of the State

of Israel requested the extradition of John Demjanjuk

[hereinafter referred to as “respondent” or “the respon-

dent”] from the United States of America pursuant to an

Israeli arrest warrant issued on October 18, 1983. The

warrant charges Demjanjuk with “the crimes of mur-

dering Jews, [which are] offenses under sections 1 to 4

of the Nazi and Nazi Collaborators (Punishment) Law” of

the State of Israel. State of Israel’s Request for the Ex-

tradition of John Demjanjuk at 11-12.

The Government of the United States pursuant to its

obligation under the Convention on Extradition between

the Government of the United States of America and the

i isi

A39

Government of the State of Israel, T.I.A.S. 5476, 14 U.S.T.

1717 (signed December 10, 1962) (entered into force De-

cember 5, 1963) [hereinafter “the Treaty”], filed on No-

vember 18, 1983 a complaint [hereinafter the “Govern-

ment’s Complaint”] seeking the extradition of the respon-

dent to Israel. In its Complaint, the Government states

that respondent is charged with “the crimes of murder and

malicious wounding; inflicting grievous bodily harm” which

are among the enumerated offenses in Article II of the

Treaty, which is still in full force and effect. Govern-

ment’s Complaint at 1-2.

This Court must determine whether respondent can

be extradited to the State of Israel pursuant to 18 U.S.C.

§ 3184.?

a

PRIOR HISTORY

The respondent, a native of the Ukraine of the Union

of Soviet Socialist Republics [hereinafter referred to as

“U.S.S.R.”], entered the United States on February 9,

1952; he was granted lawful permanent residence under

the Displaced Persons Act of 1948, Pub. L. No. 80-774, ch.

647, 62 Stat. 1009, as amended. On November 14, 1958,

he was naturalized as a United States citizen by the United

States District Court in Cleveland, Ohio. At his naturali-

zation, he changed his first name from Ivan to John. He

subsequently took up residence in Seven Hills, Ohio.

On June 23, 1981, this Court found that respondent

had made material misrepresentations in his visa applica-

1. Throughout this opinion, the Court will use the words

“extraditability” and “extradition.” It will be clear from the

context of the passage whether the reference is to the Court’s

legal determination under Treaty and statute (extraditability)

or the Executive’s discretionary decision (the actual extradition).

a

A40

tion by failing to disclose his service for the German SS

at the Trawniki and Treblinka prison camps in 1942-43.

It was ordered that respondent’s United States citizenship

be revoked and his certificate of naturalization cancelled.

United States v. Demjanjuk, 518 F.Supp. 1362 (N. D. Ohio,

1981), aff'd, 680 F.2d 32 (6th Cir.), cert. denied, 459 U.S.

1036 (1982).

On December 6, 1982, the Immigration and Naturaliza-

tion Service began deportation proceedings against re-

spondent. On May 23, 1984, Immigration Judge Adolph

F. Angellili found respondent deportable and designated

the U.S.S.R. as the country of deportation. However, the

immigration judge also granted the respondent the option

of voluntary departure from the United States. On Feb-

ruary 14, 1985, the Board of Immigration Appeals dismissed

respondent’s appeal of the deportation order; the Board

affirmed the finding of respondent’s deportability and

reversed the grant of voluntary departure. In re John

Demjanjuk, I & N Dec., File A8-237-417 (Cleveland) (B.LA.

February 14, 1985) [hereinafter “B.I.A. Decision”].

On July 17, 1984, this Court ruled that, despite respon-

dent’s appeal of his deportation, the extradition and de-

portation proceedings are independent and, as a result,

respondent’s extradition hearing could proceed. The Court

also stated that the United States Government was under

no obligation to elect deportation or extradition as the

exclusive means of proceeding against respondent.

Il.

On March 12, 1985, an extradition hearing for respon-

dent was held. Oral argument was heard and documen-

tary evidence including photographs, affidavits, and prior

recorded testimony was presented. No witnesses were

calied to testify that day in open court.

A4l1

The issues or conditions necessary for a finding of ex-

traditabliity have been previously identified. See Order

of March 5, 1985 at 2. The Court has already determined

that jurisdiction is present and that the United States-

Israel extradition treaty remains in full force and effect.

Order of December 6, 1984; Order of March 8, 1985. Three

issues were considered at the March 12, 1985 extradition

hearing. They are:

1. Whether the respondent is the party named in

the complaint [issue of identification];

2. Whether the crimes for which respondent’s ex-

tradition is sought are offenses “within the treaty” [issues

of treaty interpretation]; and

3. Whether there is “competent and adequate evi-

dence” or “probable cause” to believe respondent com-

mitted the acts with which he is charged [issue of probable

cause}.

Each of these issues will be examined and resolved be-

low.

Il.

IDENTIFICATION

The Court must determine whether respondent John

Demjanjuk is the individual named in the complaint.

Normally, this inquiry would be simplified by a facial

comparison of the respondent’s name and that appearing

in the complaint. However, in the instant case, respon-

dent alleges that he is not the man whom Israel seeks:

in other words, he claims that the person sought and

the respondent are two different people.

For the following reasons, the Court finds that there

is probable cause to believe respondent is the individual

A42

who is charged with the crimes alleged by the State of

Israel.

The Government submitted four exhibits. They are:

a set of documents, filed November 18, 1983, entitled

“State of Israel/Ministry of Justice/Request for the

Extradition of John Demjanjuk” [previously cited as

‘Israeli Extradition Request’’] [Government Exhibit

1);

a set of documents, filed January 30, 1984, entitled

“State of Israel/Supplement to the Request for the

Extradition of John Demjanjuk” [Government Ex-

hibit 2];

a set of documents, filed March 2, 1984, entitled “State

of Israel/Additional Supplement to the Request for the

Extradition of John Demjanjuk” [Government Ex-

hibit 3];

a document filed November 18, 1983, entitled ‘“Declara-

tion of Jeffrey H. Smith [Assistant Legal Adviser,

United States Departrnent of State]” [Government

Exhibit 4].

Government Exhibits 1-3 are all certified as “authenti-

cated documentary evidence” by James F. Hughes III,

Consul General of the United States of America at Tel

Aviv, Israel. Counsel General Hughes certified and placed

‘the-seal of his office on Government Exhibit 1 on Novem-

ber 3, 1983. Government Exhibits 2 and 3 were similarly

certified by Hughes on January 12, 1984 and February 9,

1984 respectively. Government Exhitit 4 is certified with

the seal of United States Department of State by Secre-

tary of State George Schultz through Acting Authentication

Officer Joan C. Hampton; it was sealed November 17, 1983.

A43

Respondent has not questioned the certification and

authenticity of the evidence against him submitted by the

Government in this extradition matter. At the March 12,

1985 extradition hearing, the Court identified the proper

standard for the admission of evidence in an extradition

proceeding. Transcript of March 12, 1985 Hearing, at 111-

112, [hereinafter “March Tr.”] Documentary evidence

which has been authenticated in the statutory manner and

then certified by an appropriate United States diplomatic or

consular official must be admitted in an extradition pro-

ceeding. 18 U.S.C. § 3190. Since the admission of properly

certified evidence is obligatory on the extradition court

under 18 U.S.C. § 3190, the Court instructed the respon-

dent that evidentiary challenges “may only question

whether the certification or authentication complies with

the statute.” March Tr. at 112. The Court repeatedly

asked counsel for respondent to state for the record his

specific objections to the evidence. March Tr. at 113, 118,

120, 121, 123, 124, 125, 127, 129, 134-35, 164. Counsel for

respondent repeatedly “reserved his objections,” see March

Tr. at 114, 120, 134-35. However, when the Court specifi-

cally asked counsel to put on the record any remaining ob-

jections he had to the evidence, respondent’s counsel stated

he “ha[d] nothing more.” March Tr. at 165. The Court

viewed the documents and respondent’s “objections,” none

of which directly contested the certification or authentica-

tion of the evidence submitted. Citing both i8 U.S.C.

$3190 and Article X of the U.S.-Israel extradition treaty,

the Court found the documents properly certified and au-

thenticated and admitted the four exhibits into evidence.

March Tr. at 165-66. °

The Government need only make out a prima facie

case to establish identification. Argento v. Jacobs, 176

F.Supp. 877, 879 (N.D. Ohio, 1959) (Weick, J.). Nu-

A44

merous cases establish that identification in an extradition

proceeding requires only a threshhold showing of probable

cause. In Raftery ex rel. Fong v. Bligh 55 F.2d 189 (1st

Cir. 1932), the First Circuit reviewed a habeas corpus de-

cision to determine whether the district court had cor-

rectly identified the individual who was to be extradited

for murder. The court found that there was competent

evidence on the record, id. at 195, and that the affidavits

identifying the requested individual were properly certi-

fied and authenticated. Id. at 193.*

In Hooker v. Klein, 573 F.2d 1360, 1367 (9th Cir. 1978),

the Court stated that “[t]he extraditing court also has

the duty to determine whether the party brought before

it is the one named in the complaint.” (emphasis added)

However, rather than merely examining the complaint,

that is, the document filed by the United States Gov-

ernment, the Court must review the arrest warrant or

charging document filed by the requesting government.

Indeed, the Hooker opinion does make such a review:

“The record of the extradition proceeding also reveals

that there was competent legal evidence before the ex-

tradition judge upon which he could find that the person

2. In Raftery, an interstate extradition case, the Court

stated that the extraditing official, in that case the Governor of

Massachusetts, did not need to consider whether the person ar-

rested (ie. the person responding to the extradition) is identical

to the person demanded. Id. at 193. The Court stated that the

burden of proving that the person arrested is a fugitive from

justice is upon the state, “there being no presumption that the

person arrested is the person demanded.” Aithough Raftery

was a habeas corpus proceeding, the inference for the instant

case is that the extraditing magistrate in the first instance need

not determine absolutely that the person demanded and the one

arrested are the same. The Government, however, still has

the burden of proving some nexus between the two, namely

probable cause to believe the two. are the same. However, once

the extradition warrant is issued, the Raftery court noted it must

be regarded as “presumptively right,” the burden of overcom-

ing the presumption being on petitioner (relator). Id. at 193.

A45

before him was the one named in the extradition warrant

...” (emphasis added). Id. at 1369. The proposition that

the extradition warrant is the document to focus upon

finds further support in Fernandez v. Phillips, 268 U.S.

311, 313 (1925): “The warrant is said to be bad because

it names Mariano Viamonte, and not Mariano Viamonte

Fernandez, the appellant. He is named both ways in the

proceedings and is identified by testimony. There is

nothing in this objection. . . .” (emphasis added). A sim-

ilar passage appears in Chariton v. Kelly, 229 U.S. 447,

448-49 (1912): “The proceedings for the extradition of

the appellant were begun upon a complaint duly made

by the Italian Vice-Consul, [the submission from the re-

questing government] charging him with the commission

of a murder in Italy. . . . At the hearing, evidence was

produced which satisfied Judge Blair that the appellant

was a fugitive from justice and that he was the person

whose return to Italy was desired... .”

Examining the Government’s Complaint in the instant

case proves nothing. The United States seeks “one John

Demjanjuk, who currently resides at 847 Meadow Lane,

Seven Hills, Ohio.” There is no question that respondent

lives at this address in Seven Hills. However, the Israeli

Extradition Request states the following:

A46

A - Description of Person Whose Extradition is Requested

2. Demjanjuk’s personal particulars and description are

as follows:

Family name:

First Name:

Also known as:

Father’s Name:

Date of Birth:

Place of Birth:

Last known residence:

Demjanjuk

John

Iwan Demjanjuk

Ivan Demjanjuk

“Tyan Grozny” (“Ivan the

Terrible’)

Mikola or Nikola

Aprii 3, 1920

Dub Nacharenzi, Ukraine,

a republic of the U.S.S.R.

847 Meadow Lane,

Seven Hills, Ohio

Israeli Extradition Request at 1.

Respondent contends that he is not the Ivan Grozny sought

by Israel. Transcript, Hearing of Dec. 17, 1984, at 55

{hereinafter “December Tr.”].°

3. The Government of Israel states the following in its

request under “Identification of Demjanjuk”’:

A. A Photograph of Demjanjuk is attached hereto and

marked Exhibit “A”. This photograph has been identified

by witnesses, whose statements are included in this Request

for Extradition, as a picture of the person known to them

as “Ivan” or “Iwan” or “Ivan the Terrible” from the

Treblinka death camp (See Exhibits C, D, E, and F).

B. For further identification of Demjanjuk as the person

requested by this Request for Extradition, reference is

hereby made:

1. To his identification from pictures by witnesses who

testified at the trial of the case of United States of America

vs. John Demjanjuk, File No. C77-923, 518 F. Supp. 1362

(1981) (an action to cancel Demjanjuk’s U.S. citizenship) ;

2. To the findings by the Court in that case concerning the

eyewitness identification of Demjanjuk as the ‘Ivan’ from

Treblinka.

See Memorandum of Decision and Order of the Court which

is attached hereto and marked Exhibit B.

Israeli Extradition Request at 1-2.

——

A47

In the hearing on this matter held December 17, 1984,

the United States Government was asked “What evidence

is relied upon by the State of Israel to establish that the

requested individual is indeed, the respondent?” Decem-

ber Tr. at 50. Counsel for the Government responded:

[T]here is no question in the Government’s mind

that the identification information that is separate and

apart from the denaturalization findings of fact which

are incorporated are abundantly clear and meet the

standards [of identification] in and of themselves... .

The Government submits that the witness affi-

davits over and apart from those that are incorporated

via the denaturalization case are sufficient.”

December Tr. at 54-55.

Although the Government did not directly state on

what evidence it was relying, see December Tr. at 54,

and did state that Israel had incorporated the denatural-

ization findings as part of its Extradition Request, id., the

thrust of its statement is that the eyewitness identifications

are independent from the denaturalization identification

and sufficient in themselves to establish that respondent

is the individual sought in this extradition request.

It is well-established that sworn statements of wit-

nesses and photographs may be used to identify individ-

uals sought for extradition. Argento v. Horn, 241 F.2d

258, 263 (6th Cir. 1957) (Stewart, J.); In re Edmondson,

352 F. Supp. 22 (D. Minn. 1972) (Counsel General of U.S.

in Ottawa submits certified affidavit and “certified photo-

graphs of the two respondents which this court personally

compared with the individuals as they appeared in court

at the extradition hearing”); Ex part Romano, 40 F.2d

750 (S.D. Calif. 1930) (a photograph identified as that

A48

of the murderer by two witnesses residing at Bivona,

where the crime was committed, was attached to the

depositions and introduced in evidynce at the hearing:

evidence was sufficient to esta.'':!. identity); Bagley v.

Starwich, 8 F.2d 42, 42 (9th Cir. 1925) (“a photograph

of one of the robbers, authenticated by two witnesses, is

attached as an exhibit to these depositions, and it appears

that this is a photograph of appellant. This was a proper

method in which to prove the identity of appellant with

the robber.”).

Having determined that the Government need only

make out a prima facie case and that affidavits may be

used to identify an individual sought for extradition, the

Court will consider the affidavits submitted by the Gov-

ernment to determine if they meet the probable cause

standard for identification.

The first eyewitness affidavit, marked as “Exhibit C”

in the Israeli Extradition Request (Government Exhibit

1), is a “Statement under Oath” made by Elijahu Rosen-

berg, delivered before the Magistrate Court of Tel Aviv.

The statement, which is translated from the Hebrew, is

certified by Judge David Steinmetz of the Magistrate

Court of Tel Aviv as having been made by Rosenberg

on October 24, 1983. In the statement, Rosenberg con-

firms that he testified on February 18 and 19, 1981 in

respondent’s denaturalization trial and that the documents

attached to the Israel extradition request are all accurate

transcriptions of his testimony. In item #5 of the state-

ment, Rosenberg states: “There has been shown to me

a photograph marked with the letter ‘A.’. This is a pic-

ture of the man known to me as Iwan from Treblinka.

I identified this photograph at the above trial as set out

on page 520 of the attached transcript.”

A49

The second affidavit, identified as “Exhibit D” in

Government Exhibit 1, is a similar statement made by

Pinhas Epstein, who testified in the denaturalization trial

on February 20, 1981. On October 24, 1983, he stated

under oath before Judge Steinmetz that the phdtograph

marked with the letter ‘A’ was “the man known to me

as Iwan from Treblinka.” Sonia Lewkowicz in the third

affidavit, which is identified as “Exhibit E” in Govern-

ment Exhibit 1, also identified the photograph with the

letter ‘A’ as a photograph of the “man known to me as

Iwan from Treblinka.” Her statement was made before

Judge Steinmetz on October 24, 1983. Lewkowicz testi-

fied at the denaturalization trial on February 19, 1981.

Government Exhibit 1 also vontains, as “Exhibit F”,

the “Statement under Oath” of Joseph Czarny, made be-

fore Judge Steinmetz on October 24, 1983. Czarny states

that on September 21, 1976, he “made a statement in Ger-

man to a police officer at the National Police Headquarters

in Tel Aviv concerning Ivan Demjanjuk, known to me by

the nickname “Ivan the Terrible” from the Treblinka

camp during the years 1942-43.” He states in item 3 that

“There has been shown to me a photograph marked with

the letter ‘A’ and I identify that as a picture of the man

known to me as ‘Ivan’ from Treblinka.”

In his statement to the police on September 21 1976,

Czarny states that upon seeing three brown cardboard

sheets with seventeen photos on them, he pointed to

photo No. 16 “at first sight”, saying:

Why, this is Ivan Grozny, it is Ivan, the notorious

Ivan. It is thirty-three years since then, but I recog-

nise him at first sight with complete certainty. I be-

lieve I would recognise him even by night. He was

very tall, of sturdy build, his face was not so full

A50

and bloated then as it is in this picture. Rut it is

the same facial structure, the same nose, .ne same

eyes and forehead as he had. A mistake is out of the

question.”

Government Exhibit 1, “Exhibit F’”, statement at 1-2 (p.

2 of the German original).

The photograph marked letter ‘A’ which witnesses

Rosenberg, Epstein, Lewkowicz, and (zarny all identified

as the respondent is the photograph which appeared on

John Demjanjuk’s 1952 visa application to the United

States. There is no question that this is indeed a picture

of respondent or that it is authentic.

Government Exhibit 1 also includes as Exhibits “G”

and “H” transcripts of the testimony of witnesses Chiel

Rajchman and Georg Rajgrodzki in respondent’s denaturali-

zation trial. The Court notes that the witnesses did

identify respondent as Ivan from Treblinka during the

denaturalization trial.

Government Exhibit 2 consists of three affidavits. The

first affidavit is that of Dr. Yitzhak Arad.* Based on

his research, including the books and articles he has

authored, Dr. Arad states “My research on the subject

of the Treblinka death camp has also shown that during

the period 1942-43, the gas chambers at Treblinka were

operated by two Ukranians known to the prisoners and

inmates of the camp as ‘Ivan the Terrible’ and his assistant,

Nikolai.” Dr. Arad’s statement is certified as being made

on December 22, 1983.

4. Dr. Arad is a historian who received a doctorate in the

History of the Holocaust from the University of Tel Aviv. Dr.

Arad, at the time he gave his statement, was Chairman of the

Directorate of the Yad Vashem Martyrs and Heroes Remembrance

Authority in Jerusalem, which is a museum and archives cover-

ing the holocaust period from 1933 to 1945. By 1984, Dr. Arad

had been Chairman of the Directorate for 12 years.

A51

The second affidavit in Government Exhibit 2 is an

affidavit by Elijahu Rosenberg. It is certified as being

made on January 5, 1984. In the affidavit, Rosenberg

states that at the denaturalization trial, he testified that

he:

had the opportunity to observe the persons who

operated the motors which sent the poisonous gas fumes

into the gas chambers, and that I saw that the persons

who operated these motors were tvo Ukranians by

the names of Iwan and Nikolai.

I hereby confirm that at the said trial, I identified

two photographs as being pictures of the man known

to me as “Ivan” or “Ivan the Terrible” from the Tre-

blinka death camp.

The third affidavit is that of Marvin E. Hankin, who

is Senior Assistant to the Staff Attorney for the Israel

Ministry of Justice. The affidavit is certified as being

made on January 6, 1984. On page 3 of that affidavit,

Hankin states:

I hereby certify that the photograph attached hereto

and marked ‘A’ is the identical photograph which was

previously identified by the witnesses Elijahu Rosen-

berg, Pinhas Epstein, Sonia Lewkowicz and Joseph

Czarny and which was attached as Exhibit A to Israel’s

Request of October 31, 1983 for the Extradition of

John Damjanjuk.

Government Exhibit 3 contains two statements made

under oath. Exhibit “ER” is a “Statement [made] under

Oath” by Elijahu Rosenberg on February 5, 1984. In it

Rosenberg states that:

Today, the 5th of February 1984, Mr. Martin Kolar,

of the Israel Police Unit for the Investigation of Nazi

A52

Crimes, produced to me the picture attached hereto and

marked ‘ER/1’. I hereby confirm that this is a pic-

ture of John (Ivan) Demjanjuk whom the State of

Israel wishes to extradite and bring to trial for the

deeds he committed in the years 1942 and 1943 at the

Treblinka death camp. ... In my evidence [testi-

mony] in the [denaturalization] case, I referred to

Demjanjuk by the name ‘Iwan’ because this is how

he was known to me when I was imprisoned in the

Treblinka camp.

Exhibit PE is a “statement [made] under Oath” by

Pinhas Epstein on February 5, 1984. Epstein states:

On the 5th of February 1984 Mr. Martin Kolar, of

the Israel Police Unit for the investigation of Nazi

Crimes, produced to me the picture attached hereto

and marked “PE/1”. I hereby confirm that this is a

picture of John (Ivan) Demjanjuk whom the State

of Israel wishes to extradite and bring to trial for

the deeds he committed in the years 1942 and 1943

at the Treblinka death camp. ... In my evidence

[testimony] in the said case, I referred to Demjunjak

by the name “Iwan” because this is how he was known

to me when I was imprisoned in the Treblinka camp.

The photographs marked ‘ER/1’ and ‘PE/1’ are iden-

tical to one another. They are circa. 1982 photographs of

John Demjanjuk.

The Court finds that there is sufficient evidence based

on the eyewitness affidavits submitted by the Government

to conclude that there is probable cause to believe respon-

dent is the individual known as Ivan Demjanjuk sought

by Israel and named in the arrest warrant. This Court

need not identify a particular number or quantity of

evidence to reach its determination. It is enough to say

ORT laird WRIA BAU Laan eee WMG all ie keine ate Rete we nine one

INSEE Eat

OR. Le

A53

that there is sufficient evidence on the record, based on

the Rosenberg, Epstein, Lewkowicz, and Czarny affidavits,

which is both authentic and relevant, to find that the

Government has made a prima facie case that respondent

John Demjanjuk is the man whose extradition is sought.

As previously stated it is not an extradition court’s func-

tion to determine with absolute certainty whether the

individual sought actually committed the offenses.

The case of In re Assarsson, 635 F.2d 1237 (7th Cir.

1980), is instructive regarding identification. In that case,

a Swedish citizen brought a habeas corpus action challeng-

ing his extradition to Sweden on charges of arson, fraud

and attempted fraud. Assarsson did not contest that he

was the person whose arrest was sought. Id. at 1246. The

court specifically distinguished his case from those cases

“where the identity of the person seized in the requested

state was at issue.” See, e.g., Raftery ex rel. Fong v. Bligh,

55 F.2d 189 (ist Cir. 1932), supra, at 6. However, in

Assarsson, as in the instant case, the authentication of the

documents was not an issue. See supra at 4-5. Assarsson’s

objection was to whether the evidence (since it lacked a

photograph) was sufficient to identify him. The court

stated:

(i]t may be that on the full trial [the requested in-

dividual] may be able to submit substantial proof

that another rather than he was the perpetrator of the

fraud, but that is a matter for exploration during the

trial in [the requesting country] and not for extensive

evidentiary inquiry during the extradition hearing.

Assarsson, at 1245 (quoting from Peroff v. Hylton, 542

F.2d 1247, 1249 (4th Cir. 1976), cert. denied, 429 U.S. 1062

(1977) (extradition request from Sweden)). Hence, as

'

A54

Assarsson indicates, should respondent be tried in Israel,

he can present exculpatory evidence that he was not the

person who committed the crimes with which he is charged.

Respondent has attempted to call into question this

identification by questioning the integrity of the earlier

denaturalization proceeding against him. He specifically

alleges fraud and misconduct on the part of the Govern-

ment and this Court, claiming that the Trawniki ID.

bearing respondent’s picture was “intentionally altered”

by the Soviet Union and is “fraudulent.” Respondent’s

Reply to Government’s Pre-Hearing Memorandum (May

24, 1984) at 27-29. The Court will not, once again, recon-

sider these charges here, having done so numerous times

before. See Order of February 12, 1985, United States v.

Demjanjuk, Case No. 77-923 (second motion to vacate);

Matter of Demjanjuk, 584 F. Supp. 1321 (N.D. Ohio 1984)

(recusal motion); United States v. Demjanjuk, 103 F.R.D.

1 (N.D. Ohio 1983) (first motion to vacate). Respon-

dent’s charges have been found to be baseless. The /

denaturalization proceeding has been reviewed and af-

firmed on appeal. See United States v. Demjanjuk, 680

F.2d 32 (6th Cir.), cert. denied, 459 U.S. 1056 (1982); see

also B.I.A. Decision, at 7-10.

Although respondent has continued to dispute the use

of the Trawniki card despite numerous decisions refuting

his position, there is sufficient evidence to identify re-

spondent for extradition purposes without reference to

the Trawniki card at all. The independence of the evi-

dence was noted by the Board of Immigration Appeals.

Moreover, contrary to respondent’s allegations, the

Trawniki card was not the sole evidence of the re-

spondent’s activities at Trawniki and Treblinka. The

a

A55

respondent’s arguments conveniently ignore the fact

that five surviving prisoners and a German guard

identified the respondent’s photograph as that of the

Ivan who operated the gas chambers at Treblinka.

B.I.A. Decision, at 9-10.

Those eyewitness identifications remain sufficient to

establish respondent’s identity. The identifications were

based on viewing a photograph marked “A”. This photo-

graph is the 1952 visa application photograph of John

Demjanjuk. It is not the picture which appears on the

Trawniki I.D. card. The subsequent identifications made

by witnesses Rosenberg and Epstein in the supplementary

motions were based on photographs marked “ER/1” and

“PE/1.” These are identical photographs. The photo-

graph is a picture, circa 1982, of John Demjanjuk, stand-

ing in front of a height chart. Hence, the eyewitness

identifications were based on photographs, the authentic-

ity of which is not questioned. Respondent’s efforts to call

into question these identifications made on the basis of

authenticated photographs simply because the identifica-

tions were made in the denaturalization proceedings can-

not be countenanced. Not only have these denaturaliza-

tion findings and proceedings been found to be proper but

the fact that the identifications were made in open court

and under oath serves to insure that the identifications

were conducted properly.

Respondent’s counsel argues that there is “absolutely

no connection” between John Demjanjuk and Ivan Grozny,

the guard at the Trawniki and Treblinka camps. Tran-

script of March 12, 1985 Hearing [hereinafter referred

to as “March Tr.’’]. Respondent’s counsel stated at the

March 12th extradition hearing that the Government

should proceed “on the basis of some identification that

A56

shows this is the individual, and if it is, in fact, linked

with 1942 and 1943, then there ought to be some evidence

of probable cause as opposed to a mere allegation that

he has been the man on trial for the last seven years or

so.” (emphasis added). March Tr. at 157, 158. The Court

does not know what type of evidence respondent means

when he says “some evidence.”® Absolute certainty is

not required in the law, whether it be for identification

purposes or in meeting burdens of proof.

This Court finds that not only are the eyewitness

identifications sufficient but there is an obvious and strik-

ing resemblance between the man depicted in the sub-

mitted photographs and the respondent, which when taken

together clearly rise to the level of probable cause.

IV.

TREATY INTERPRETATION

Turning to the second element an extradition court

must consider, this Court will decide whether respondent

has been charged with having committed, within the ju-

risdiction of the State of Israel, any of the crimes pro-

vided for in the Treaty. 18 U.S.C. §3184.

5. The Court is unaware of any evidence other than eye-

witness affidavits and photographs which are available in the

instant case. Surely, fingerprints, blood samples, dental records,

voice recordings, etc. and other types of physical or scientific

evidence are unlikely here, given the destruction of the camps

and the passage of time. It is therefore noteworthy that re-

spondent admits that he had a blood group tatoo inside his left

arm which was later removed. An expert witness testified

that only members of the German SS would be so marked.

Demjanjuk, 518 F. Supp at 1377-78; BIA Decision, at 10. How-

ever, this evidence was adduced at the denaturalization hearing

and has not been submitted as part of the Government’s evidence

in this extradition proceeding. The Court is therefore not relying

on the tatoo in making its identification determination.

Pn al mt nt ey eh,

a ah he nN NE 6 pants “Bad ve

sachanioe

A57

A. Israeli Jurisdiction

Respondent asserts that Israel lacks jurisdiction under

“recognized principles of International Law” to bring him

to trial. Respondent’s Motion to Terminate at 11 (filed

April 2, 1984). If Israel lacks jurisdiction,® the United

States can not extradite respondent to Israel. Israel’s as-

sertion of jurisdiction over respondent, however, is proper

under both Israeli municipal law and international law.

Furthermore, Israeli jurisdiction does not violate United

States jurisdictional principles or practices in any way.

In 1950, Israel enacted the Nazis and Nazi Collabora-

tors (Punishment) Law, 5710-1950. [hereinafter ‘Nazi

Statute”]’ This statute makes crimes against the Jewish

people, crimes against humanity and acts constituting war

crimes which occurred during the Nazi period, inter alia,

punishable under Israeli law.* The statute defines these

crimes as follows:

6. Absent contrary Congressional intent, international law

is part of the law of United States. Accord The Paquete Habana,

175 U.S. 677, 712 (1900); Tag v. Rogers, 267 F.2d 664 (D.C.

Cir. 1959), cert. denied, 362 U.S. 904 (1959).

7. This statute was passed by the Israeli Knesset on the

18th Av, 5710 (1st August, 1950), and published in Sefer Ha-

Chukkim No. 57 of the 26th Av, 5710 (9th August, 1950). p. 281.

The Bill and an Explanatory Note were published in Hatza’ot

Chok No. 36 of the 11th Adar, 5710 (28th February, 1950). p. 119.

8. Section 1(a) of the statute provides:

A person who has committed one of the following offences—

(1) done, during the period of the Nazi regime, in an enemy

country an act constituting a crime against the Jewish people;

(2) done, during the period of the Nazi regime, in an enemy

country, an act constituting a crime against humanity;

(3) done, during the period of the Second World War, in

an enemy country, an act constituting a war crime, is liable

to the death penalty.

Sections 2, 3 and 4 provide, in relevant part:

2. If a person, during the period of the Nazi regime, com-

mitted in an enemy country an act by which, had he com-

(Continued on following page)

A58

1.(b) In this section -

“crime against the Jewish people” means any of the

following acts, committed with intent to destroy the

Jewish people in whole or in part:

1. killing Jews;

2. causing serious bodily or mental harm to Jews;

3. placing Jews in living conditions calculated to

bring about their physical destruction;

4. imposing measures intended to prevent births

among Jews;

Footnote continued—

mitted it in Israel territory, he would have become guilty

of an offence under one of the following sections of the

Criminal Code, and he committed the act against a perse-

cuted person as a persecuted person he shall be guilty of

an offence under this Law and be liable to the same punish-

ment to which he would have been iiable had he committed

the act in Israel territory: ...

(e) section 312 (manslaughter) ;

(f) section 214 (murder); .. .

(j) section 238 (grievous harm) ;

3. (a) A person who, during the period of the Nazi regime,

in an enemy country, was a member of, or held any post

or exercised any function in, an enemy oraginsation is liable

to imprisonment for a term not exceeding seven years... .

4. (a) A person who, during the period of the Nazi regime,

in an enemy country and while exercising some function in

a place of confinement on behalf of an enemy administra-

tion or of the person in charge of that place of confinement,

committed in that place of confinement an act against a

persecuted person by which, had he committed it is Israe]

territory, he would have become guilty of an offence under

one of the following sections of the Criminal Code, shall be

guilty of an offence under this Law and be liable to the

same punishment to which he would have been liable had

he committed the act in Israel territory: .. .

(3) section 241 (wounding and similar acts) ;

(4) section 242 (failure to supply necessaries) ;

(5) section 249 (common assault) ;

(6) section 250 (assault causing actual bodily harm) ;

(7) section 261 (unlawful compuisory labour) ;...

A59

5. forcibly transferring Jewish children to another

national or religious group;

6. destroying or descrating Jewish religious or

cultural assets or values;

7. inciting to hatred of Jews;

“crime against humanity” means any of the following

acts:

murder, extermination, enslavement, starvation or

deportation and other inhumane acts committed

against any civilian population, and persecution on

national, racial, religious or political grounds;

“war crime” means any of the following acts:

murder, ill-treatment or deportation to forced

labour or for any other purpose, of civilian popula-

tion of or in occupied territory; murder or ill-

treatment of prisoners of war or persons on the

seas” killing of hostages; plunder of public or

private property; wanton destruction of cities,

towns or villages; and devastation not justified by

military necessity.

No argument has been advanced that the Israeli stat-

ute was not validly enacted under Israeli law. The Re-

quest to Issue Warrant of Arrest, presented to the Magi-

strate Court in Jerusalem (October 18, 1983) [hereinafter

“Warrant Request-Exhibit J”] and the Warrant of Arrest,

issued by Judge A. M. Simcha of the Magistrate Court

(October 18, 1983) [hereinafter “Arrest Warrant-Exhibit

J” ] both included in the Israeli Extradition Request,® show

9. The “Warrant Request-Exhibit J” and the “Arrest War-

rant-Exhibit J” are two separate documents which are included

in Government Exhibit 1, the Israeli Extradition Request. They

are identified therein as Exhibit J.

A60

that respondent is charged with offenses within the stat-

ute. Israeli courts have recognized their jurisdiction to

bring to trial war criminals for extraterritorial crimes,

pursuant to the Nazi statute. Accord Attorney General of

the Government of Israel v. Adolf Eichmann, 36 LL.R. 5

(Dist. Ct. Jerusalem, 1961) (reprinted, in relevant part,

56 Am. J. Int’l L. 805 (1962); aff’d, 36 LL.R. 277 (1962).

Thus, the assertion of jurisdiction over respondent is cer-

tainly proper under Israeli law.

International law does not generally prohibit the ap-

plication of a state’s laws (so-called “jurisdiction to pre-

scribe”) or the jurisdiction of its courts (“jurisdiction to

enforce”) over non-citizens or acts committed outside of

its territory. The Case of S.S. Lotus (France v. Turkey),

[1927] P.C.I.J. Ser. A, No. 10 at 19. Rather, states have

a “wide measure of discretion which is only limited in

certain cases by prohibitive rules.” Id. In other cases,

every state remains “free to adopt the jurisdictional prin-

ciples which it regards as best and most suitable”. Id.

The exercise of extraterritorial criminal jurisdiction over

non-citizens in certain circumstances does not violate a

state’s international obligations, such as the duty to re-

spect the sovereignty of other states. See id. at 20. It need

not be decided here whether international law permits all

that it does not forbid. Israel’s assertion of jurisdiction

over respondent based on the Nazi statute conforms with

the international law principles of ‘universal jurisdiction.”

International law provides that certain offenses may

be punished by any state because the offenders are “com-

mon enemies of all mankind and all nations have an equal

interest in their apprehension and punishment”. United

Qa. See discussion infra at 29-30 [A71].

re a

A61

States v. Oito, Case No. 000-Mauthausen-5 (DJAWC, July

10, 1947) (citing Wheaton’s International Law (6th Ed.),

Vol. 1 at 269); see also Restatement of the Foreign Rela-

tions Law of the United States, Tentative Draft No. 2

(1981) § 404 [hereinafter ““Restatement”]. Universal juris-

diction over certain offenses is established in international

law through universal condemnation of the acts involved

and genera! interest in cooperating to suppress them, as

reflected in widely-accepted international agreements and

resolutions of international organizations. Restatement

§ 404, Comment (a). Piracy is the paradigm of an offense

“against the common law of nations”. See United States

v. Otto. Other crimes which are universally condemned

include participation in the slave trade and attacks on or

hijacking of aircraft. Restatement § 404. Accord Hague

Convention for the Suppression of Unlawful Seizure of

Aircraft, 22 U.S.T. 1641, T.LA.S. 7192 (1971); Montreal

Convention for the Suppression of Unlawful Acts Against

the Safety of Civil Aviation, 24 U.S.T. 564, T.LA.S. 7570

(1973). The power to try and punish an offense against

the common law of nations, such as the law and customs

of war, stems from the sovereign character of each indepen-

dent state not from the state’s relationship to the perpetra-

tor, victim or act. United States v. Brust at 6, Case No.

000-Mauthausen-7 (DJAWC, Sept. 19, 1947), aff'd, War

Crimes Board of Review, Office of the Judge Advocate

(Nov. 6, 1947).

The principle that the perpetrators of crimes against

humanity and war crimes are subject to universal juris-

diction found acceptance in the aftermath of World War

II. The wartime Allies prosecuted persons accused of

war crimes and crimes against humanity in several

A62

forums."® In a number of instances, they exercised extra-

territorial jurisdiction over the accused. The International

Military Tribuna] at Nuremberg tried major war crim-

inals “whose offences ha[d} no particular geographical lo-

cation”. The Nurnberg Trial, 6 F.R.D. 69, 76 (1946); Agree-

ment by the Government f the United States of America,

the Provisional Gove of the French Republic, the

Government of the U.....a ingdom of Great Britain and

North Ireland and the Government of the Union of Soviet

Socialist Republics for the Prosecution and Punishment of

the Major War Criminals of the European Axis (London

Agreement) arts. 4, 6, 59 Stat. 1544, E.A.S. No. 472 (August

8, 1945). Numerous individual defendants were convicted of

“war crimes” and “crimes against humanity”,"’ many of

10. The Court is aware that a great body of historical and

legal literature exists which is critical of the purpose and conduct

of the war trials of Nazi leaders at Nuremberg and of Japanese

military leaders in the Pacific. Significant differences of opinion

remain as to the propriety of those proceedings. It is a historical

verity that the victors in war have meted out punishment to the

vanquished in the name of justice. The Court does not pass

judgment on this issue or the manner in which some of the

post-war proceedings were conducted, leaving that verdict to

time and its observers, the historians. It is, nonetheless, well-

established that extraterritorial offenses were tried by these

tribunals without objection by members of the international com-

munity.

11. The definition of these crimes, as set forth in Article

6 of the Charter annexed to the London Agreement almost ex-

actly parallels the Nazi statute. The Charter provides in rele-

vant part:

The Tribunal established by the Agreement referred to in

Article 1 hereof for the trial and punishment of the major

war criminals of the European Axis countries shall have

the power to try and punish persons who, acting in the

interests of the European Axis countries, whether as indi-

viduals or as members of the organizations, committed any

of the following crimes.

The following acts, or any of them, are crimes coming

within the jurisdiction of the Tribunal for which there shall

be individual responsibility:

(Continued on following page)

A63

which were committed outside of the territory of the four

Allies. The international community affirmed and en-

dorsed the work of the tribunals and the principles of law

they envoked, through a General Assembly Resolution.

G.A. Res. 95 (A/64,/Add. 1) p. 188 (1946); see also Moeller,

“United States Treatment of Alleged Nazi War Criminals:

International Law, Immigration Law, and the Need for In-

ternational Cooperation” (draft manuscript), to be pub-

lished in 25 Va. J. Int’l L. (summer 1985).

In a number of cases brought before United States

military tribunals, du.endants accused of war crimes ob-

jected to the assertion of jurisdiction because the crimes

were not committed on United States territory or in the

United States territorial zone of occupation in Germany.

These defenses were uniformly rejected. In asserting

jurisdiction, United States military courts discussed the

universality of jurisdiction over war crimes. For example,

in United States v. Waldeck, et al., Case No. 000-50-9

(DJAWC, Nov. 15, 1947), the defendants were physicians,

guards and officials of the Buchenwald concentration camp

in Germany. They were, variously, charged with and

Footnote continued—

(b) War Crimes: namely, violations of the laws or customs

of war. Such violations shall include, but not be limited to,

murder, ill-treatment or deportation to slave labor o: for

any other purpose of civilian population of or in occupied

territory, murder cr ill-treatment of prisoners of war or

persons on the seas, killing of hostages, plunder of public

or private property, wanton destruction of cities, towns or

villages, or devastation not justified by military necessity;

(c) Crimes Against Hurnanity: namely, murder, extermina-

tion, enslavement, deportation, and other inhumane acts

committed against any civilian population, before or during

the war, or persecutions on political, racial or religious

grounds in execution of or in connection with any crime

within the jurisdiction of the Tribunal, whether or not in

violation of the domestic law of the country where perpe-

trated. ...

A64

found guilty of “killings, beatings, tortures, starvation”

and other abuses. In finding jurisdiction over acts in

violation of the law of war committed against the na-

tionals of any country, at any place, prior to the entry

of the United States into the war, the Court stated:

Any violation of the law of nations encroaches

upon and injures the interest of sovereign states.

Whether the power to punish for such crimes will

be exercised in a particular case is a matter resting

within the discretion of a state. However, it is axiom-

atic that a state, adhering to the law of war which

forms a part of the law of nations, is interested in the

preservation and the enforcement thereof. This is

true, irrespective of when or where the crime was

committed, the belligerency status of the punishing

power, or the nationality of the victims. (citations

omitted )

United States v. Waldeck, at 34. Accord United States v.

Brust; United States v. Otto.

Both France and Norway enacted legislation which

provided for the trial of war criminals who committed

extraterritorial offenses against their nationals or their

state interests. See Baxter, “Jurisdiction Over War Crimes

and Crimes Against Humanity: Individual and State Ac-

countability”, Bassiouni and Nanda (eds.) II International

Criminc! Law at 65, 67-68 (1973). No evidence has been

presented or found which indicates that the international

community objected to the Allies’ assertion of jurisdiction

over extraterritorial war crimes and crimes against hu-

manity.

The work of the United Nations and its various orga-

nizations after World War II further shows the interest

scan he ti es

A65

of the international community in the prosecution of war

crimes, including crimes against humanity, which occurred

in execution of or in connection with other war crimes.

At the request of the United Nations General Assembly,

the International Law Commission of the United Nations

formulated “Nuremberg Principles”, Report of the Inter-

national Law Commission covering its Second Session,

5 U.N. GAOR, Supp. 12, pt. 111, U.N. Doc. A/1316 (1950),

which described crimes against peace, war crimes, and

crimes against humanity as “international crime[s].” See

also Appleman, Military Tribunals and International

Crimes 368-72 (1954). In addition, the United Nations

Convention on the Prevention and Punishment of the

Crime of Genocide, 78 UN.T.S. 277 (opened for signature

December 9, 1948) [hereinafter “Genocide Convention” ],

was adopted by the United Nations General Assembly in

1948, G.A. Res. 260(A), U.N. Doc. A/8i0 at 174 (1948)

and has been ratified by 93 nations.’* The Convention

“confirms” that genocide is “a crime under international

law” and defines genocide to include various acts, in-

cluding “killing” and “causing serious bodily or mental

12. The United States has signed the Convention but, to

date, has not ratified it. Despite the activism of the United States

delegation in promoting the Convention (and lobbying, against

the Soviet Union, for the inclusion of political groups as a pro-

tected class from oppression), the Senate entertained arguments

that under the Constitution genocide was purely ‘domestic mat-

ter.” L. Kuper, Genocide 29-30 (1981). In addition, there

was fear among some Senators that the United States would be

charged with genocidal violations for segregationist laws or

policies against blacks in America. Latter-day critics of the

Convention may believe continued opposition to its ratification

is merited given charges that United States involvement in the

Vietnam War rises to genocidal proportions. See R. Falk,

Crimes of War (1971); From Nuremburg to My Lai (ed. J.

Baird 1972). In any event, it would seem that United States

non-ratification of the Genocide Convention has largely been

motivated by fear of domestic political repercussions rather than

any fundamental disagreement with the core meaning or pur-

pose of the Convention.

A66

harm” which were committed “with intent to destroy...

a national, ethnical, racial or religious group”. Conven-

tion, arts. 1, 2. The Contracting Parties undertake “to

prevent and to punish” genocide. Convention, art. 1.

Respondent states that no jurisdiction arises under

the principle of universality. He argues that only Con-

gress, pursuant to the United States Constitution Article

I, section 8, clause 10 (power to define offenses against

the laws of nations), or the President, with the advice and

consent of the Senate, pursuant to Article II, section 2,

clause 2 of the Constitution (treaty-making power) has

the power to “define a universal crime.” Motion to

Terminate at 16-17. Respondent claims that “the Laws

of Nations cannot be broadly applied as a basis for federal

jurisdiction over a case.” Id. at 18. Respondent mis-

characterizes the issue pertaining to universality. This

Court must only determine whether Israel can assert ju-

risdiction over the alleged offenses, not whether Congress

has defined the offenses as universal crimes or whether a

United States court could try respondent for the alleged

crimes under United States law. This Court has juris-

diction to conduct an extradition proceeding, pursuant to

18 U.S.C. § 3184. Order of February 21, 1985; Order of

March 8, 1985.

Respondent cites no authority to show that Israel

would violate international law in the instant case by

asserting jurisdiction over respondent based on the uni-

versality principle. Israel has brought charges of “murder”

against Demjanjuk, asserting jurisdiction based on a stat-

ute which penalizes “war crimes” and “crimes against hu-

manity”, among other acts. The international coramunity

has determined that these offenses are crimes over which

universal jurisdiction exists. Supra at 21-26 [A60-A66].

A67

Moreover, Israel’s assertion of jurisdiction does not im-

pinge or interfere with any other state’s jurisdiction since

no other nation has requested respondent’s extradition.

A colorable argument has been made that Israel has

jurisdiction to try respondent, based on the “protective”

and “passive personality” theories of jurisdiction. The

Court, however, need not determine whether Israel’s asser-

tion of jurisdiction on these bases is in conformity with

international law because the Court finds that Israel has

properly asserted jurisdiction under international law,

pursuant to the universality principle.”

13. Israel may be able to assert jurisdiction to try respon-

dent, pursuant to the Nazi statute based on the “protective”

principle. International law has recognized a state’s right to

punish certain conduct occurring outside its territory by persons

who are not its nationals when the conduct is directed against

the security of the state or against important state interests or

functions. Restatement § 402(3) and § 402 Comment (d). The

regulated actions must have a demonstrable, adverse affect on

the regulating state in particular, or at least a potentially adverse

affect on that state. United States v. James-Robinson, 515 F.

Supp. 1340, 1345 (S.D. Fla. 1981). The crimes subject to such

jurisdiction have included: espionage, counterfeiting of the

state’s seal or currency, the falsification of official documents,

perjury before consular officials and conspiracies to violate a

state’s immigration or customs laws. Restatement § 402, Com-

ment (d).

United States statutes and courts have recognized the pro-

tective principle’s validity in several contexts. Restatement

§ 403 Reporters’ Note 7. See e.g., United States v. Pizzaruzzo,

388 F.2d 8 (2d Cir. 1966), cert. denied, 392 U.S. 936 (1968)

(knowingly making a false statement on a visa application to

enter the United States); Rocha v. United States, 288 F.2d 545

(9th Cir. 1961), cert. denied, 366 U.S. 948 (1961), (sham mar-

riages abroad to make unlawful entries as immigrants). In re-

cent years, United States courts have used the principle to uphoid

extraterritorial jurisdiction over narcotics traffickers. Accord

United States v. Postal, 589 F.2d 862, 886 n. 39 (5th Cir. 1979);

United States v. King, 552 F.2d 833, 851 (9th Cir. 1976) cert.

denied, 430 U.S. 966 (1977); United States v. Angola, 514 F.

Supp. 933 (S.D. Fla. 1981). See also Note, “Trends in Extra-

territorial Narcotics Control: “Slamming the Stable Door After

the Horse has Bolted”, 16 N.Y.U.J. Int’l L & Pol. 353, 374-90

(Continued on following page)

A68

B. Charges Within the Treaty

Respondent argues that the crimes he is charged with

do not “conform to the letter or intent of the U.S.-Israel

Extradition Treaty.” Motion to Terminate at 23. He

argues that:

. . . The alleged “crime against the Jewish people”

does not in any way conform to the letter or intent of

the U.S. - Israel Extradition Treaty (14 U.S.T. 1708).

The list of Extraditable Crimes under Article II of the

Treaty exhibits no language encompassing war crimes,

genocide, crimes against “persecuted people” or per-

secuted nationalities. The specific acts and intent

which must be demonstrated under the Law of Israel

(Nazi and Nazi Collaborators (Punishment) Law), in

order to confer extraterritorial jurisdiction, under Is-

raeli Domestic Law, and in Israel’s view under the

substantive International Law, automatically eliminate

Footnote continued—

(1984). These courts have reasoned that vessels in close prox-

imity to the United States, full of illegal drugs, represent a real

potential for harm to the effective administration of United

States’ customs and narcotics laws, which reflect a strong gov-

ernmental interest. United States v. Angola, 514 F. Supp. at

936.

In the instant case, it has been argued that important state

interests of Israel were affected by the acts alleged. Brief of

Amicus Curiae (The International Human Rights Law Group

(filed April 10, 1984) at 42-45).

Israel may be able to assert jurisdiction based on the “passive

personality” theory. Under that theory, a state may, in certain

circumstances, apply its criminal law to an act committed out-

side its territory by a person not its national, because the victim

of the act was its national. Restatement § 402, Comment (e);

id. The validity of this theory in international law is in doubt.

Restatement § 402, Comment (e). And, the victims of the al-

leged crimes were, of course, not Israeli citizens. Nonetheless,

it is possible that Israel may assert jurisdiction here because of

its close nexus with the victims. See Brief of Amicus Curiae

at 42-44.

oat oases neansaceuaii eal

MS tebe eee ee rmmne schon 5

‘yer athe

A69

the Israeli charge and the acts supporting the charge,

from the category of statutory murder. The crime of

murder set out in Article II of the Treaty excludes

the elements of the offense of genocide or war crimes.

Motion to Terminate at 23. The Treaty provides, in rele-

vant part:

Article I

Each Contracting Party agrees, under the condi-

tions and circumstances established by the present

Convention, reciprocally tc deliver up persons found

in its territory who have been charged with or con-

victed of any of the offenses mentioned in Article II of

the present Convention committed within the territorial

jurisdiction of the other, or outside thereof under the

conditions specified in Article III of the present Con-

vention.

Article I

Persons shall be delivered up according to the pro-

visions of the present Convention for prosecution when

they have been charged with, or to undergo sentence

when they have been convicted of, any of the follow-

ing offenses:

1. Murder.

2. Manslaughter.

3. Malicious wounding; inflicting grievous bodily

harm...

Article III

When the offense has been committed outside the

territorial jurisdiction of the requesting Party, extra-

A70

dition need not be granted unless the laws of the re-

quested Party provide for the punishment of such an

offense committed in similar circumstances. .. .

Respondent is correct in asserting that the crimes for

which Demjanjuk is charged must fall within the treaty

provisions for Demjanjuk to be found extraditable.

The Arrest Warrant-Exhibit J charges respondent with

“Crimes against the Nazi and Nazi Collaborators (Punish-

ment) Law, 5710-1950”. The Warrant Requ:-+- Exhibit J

more fully sets forth the charges:

Details of the offense(s): The suspect, nicknamed

“Ivan the Terrible”, was a member of the S.S., and

in the years 1942 - 1943 operated the gas chambers

to exterminate prisoners at the Treblinka death camp

in the Lublin area of Poland, which was occupied by

the Nazis during the Second World War. The suspect

murdered tens of thousands of Jews, as well as non-

Jews, killing them, injuring them, causing them serious

bodily and mental harm and subjected them to living

conditions calculated to bring about their physical de-

struction. The suspect committed these acts with

the intention of destroying the Jewish people and

to commit crimes against humanity.

Paragraph(s) of the charges: Paragraphs 1, 2, 3, and

4 of the Nazi and Nazi Collaborators (Punishment)

Law, 5710-1950.

In addition, the eyewitness statements in the Israeli Ex-

tradition Request allege specific instances of killings, beat-

ings, and injuries inflicted by respondent.'*

For the reasons set forth below, this Court finds that

some of the charges alleged against Demjanjuk are of-

14. See infra at 37-41 [A79-A83].

4 Wen a oie > schimnenobilbadilll

a Leen)

A7l

fenses for which he is extraditable under Article ITI of

the Treaty and are offenses mentioned in Article II of

the Treaty.

1. Extraditable Charges.

Demjanjuk is charged with murdering thousands of

Jews and non-Jews while operating the gas chambers to

exterminate prisoners at Treblinka. Warrant Request-

Exhibit J. The Government’s Complaint states that re-

spondent “is duly and legally charged with having com-

mitted the crimes of murder and malicious wounding; in-

flicting grievous bodily harm” and that the said crimes

are “among the offenses enumerated in Article II” of the

Treaty. This Court finds that Israel seeks Demjanjuk’s

extradition for trial on charges of murder, pursuant to

sections 1(b) and 2(f) of the Nazi statute, and that

those charges are recognized as crimes under Article II

of the Treaty.

In addition to the charges of multiple murder, the

Warrant Request-Exhibit J and Arrest Warrant-Exhibit J

charge Demjanjuk with a number of other crimes, pur-

suant to the Nazi Statute, sections 1-4. Implicitly recog-

nizing that extradition is limited to offenses set forth in

Article II of the Treaty, the United States Attorney for

the Northern District of Ohio has requested Demjanjuk’s

extradition only for the crimes of murder, manslaughter

and malicious wounding; inflicting grievous harm. Gov-

ernment Complaint at 1; Tr. at 40-44. Thus, the Court

simply notes that Demjanjuk is non-etraditable for any

of the other charges included in the Warrant Request-

Exhibit J and Arrest Warrant-Exhibit J.

Furthermore, bars to extradition are normally dis-

cussed after a party is found otherwise extraditable. In

the interest of clarity, however, the Treaty’s time-bar,

Article V(3), (its reference to statutes of limitations) is

A72

addressed at this point. Article V(3) of the Treaty pro-

vides, in relevant part, that when the prosecution of a

person would be barred by lapse of time according to

the laws of the requested party, had the offense been

committed in its territory, extradition shall not be granted.

As the Government has acknowledged, Government’s Pre-

hearing Memorandum (April 19, 1984) at 50; March Tr.

at 22, prosecution today on charges of manslaughter and

causing grievous bodily harm stemming from acts that

occurred during 1942 to 1944 would be barred by statutes

of limitations in the United States and Ohio. 18 U.S.C.

§ 3282; Ohio Revised Code § 2901.13. Extradition on those

charges is barred. There are no applicable statutes of

limitations for the crime of murder in the United States.

18 U.S.C. § 3281; Ohio Revised Code § 2901.13. Article

V(3) does not bar extradition for murder.

2. Article III.

Article III is applicable when the offense charged is

included in Article I and the offense was committed out-

side the territorial jurisdiction of the requesting state,

in this case, Israel.° Respondent is accused of offenses

which occured in Poland. Because they were committed

outside the territorial jurisdiction of Israel, Article III

is applicable.

If the extraterritorial offense charged is punishable

in the requested state “under similar circumstances”, the

requested state must extradite the accused subject to the

other articles of the Treaty. If the offense charged is

not prosecutable under the laws of the requested party,

extradition “need not” be granted, i.e., extradition is dis-

cretionary. Nonetheless, the extradition court must make

15. The interpretation of this Treaty provision appears to

be an issue of first impression.

AT73

a legal determination as to the accused’s extraditability

pursuant to the treaty involved and 18 U.S.C. § 3184.

Accord Assarsson, 635 F.2d 1237, 1244-45 (7th Cir. 1980);

(interpretation of a virtually identical extraterritoriality

provision in the United States-Sweden Treaty of Extra-

dition, 14 U.S.T. 1845, which was ratified by the United

States Senate on the same day as the United States-Israel

Treaty), cert. denied, 451 U.S. 939 (1981); Assarsson, 687

F.2d 1157 (8th Cir. 1982); see also Shapiro v. Ferrandina,

478 F.2d 894, 906 (2d Cir. 1973), cert. dismissed, 414 U.S.

884 (1973).

The United States does recognize the criminality of

the alleged acts. The United States participated in the

Nuremberg trials where individuals were punished for

atrocities they had committed in exterminating civilian

populations. See e.g., The Nurnberg Trial, 6 F.R.D. 69,

158-59, 160-61, 172-73 (defendants Frank, Frick, von

Schirach). In addition, United States military tribunals

tried individuals for the horrible acts they committed in

concentrations camps. See supra at 23-24. Furthermore,

both Congress and the Executive Branch, through the

State Department, made clear that they regarded whole-

sale murder, torture and other inhumane treatment of

civilians as prosecutable crimes. See e.g., H. Con. Res

39, 79th Cong., 1st Sess. (1945); “Punishment of War

Criminals”, 12 Dep’t State Bull. 154 (1945). Current

United States law, however, does not provide for the trial

and punishment of persons accused of murdering civilians

in Nazi concentration camps in Europe during World War

II. “Similar circumstances”, therefore, are lacking. Thus,

the decision to extradite respondent is discretionary. Pur-

suant to Article III, it is the Court’s duty to certify whether

respondent can be extradited. The Executive branch must

determine whether a respondent actually will be extra-

dited.

A74

3. Article II.

Demjanjuk argues that the murder charges alleged

are not within the Treaty because the Treaty does not

include war crimes, genocide or crimes against persecuted

nationalities. This argument has no basis in either the

Treaty or American legal principles.

First, the Treaty does not explicitly exclude murder

of civilians occurring during wartime or motivated by

racial or religious hatred. There is no reason to presume

that the Treaty drafters intended to extradite for “mur-

der” and not for “mass murders”. Cf. Factor v. Lauben-

heimer, 290 U.S. 276, 298 (1933). Extradition treaties

historically have provided for the extradition of those

accused of serious, rather than lesser, crimes. See United

States v. Rauscher, 119 U.S. 407, 420 (1886). Demjanjuk

is certainly charged with very serious crimes—with of-

fenses “against such laws as [are] essential to the pro-

tection of life, liberty, and person.” Id. Governments

have historically been very willing to deliver up to the

appropriate authorities offenders of those laws. It is illog-

ical to assume that the Treaty drafters intended to exclude

mass murder, regardless of the motivation behind the mur-

ders, or how the murders are labelled. As the Supreme

Court said in Collins v. Loisel:

The law does not require that the name by which

the crime is described in the two countries shall be the

same; nor that the scope of the liability shall be co-

extensive, or, in other respects, the same in the

two countries. It is enough if the particular act

charged is criminal in both jurisdictions. (citations

omitted).

259 U.S. 309, 312 (1921). It is not material here that the

Treaty does not refer to the crimes respondent is charged

with in the same words as the Warrant Request.

A75

Respondent’s argument, based on his literal, and tech-

nical reading of the Treaty and the charges, leads to an

absurdity: that is, one who kills an individual is extradi-

table but one who Fills many is not extradictable. Clearly,

the law recognizes varying degrees of murder. But it is

implicit that when one seeks to intentionally kill hun-

dreds, he necessarily has the requisite intent to kill each

individual. The destruction of a group presupposes the

destruction of its individual constituent members. Dem-

janjuk is charged with multiple murders, committed with-

in the context of an over-all scheme of extermination.

There is nothing in the Treaty to indicate that murders

predicate on certain motives, such as racial or religious

hatred, are non-extraditable. The motives for the com-

mission of the crimes are immaterial for the purpose of

determining extraditability."° See In the Matter of the

Extradition of Andrija Artukovic, Case No. CV-8743-R (B),

slip op. at 9 (C.D. Cal. March 4, 1985).

Second, at the time the Treaty was prepared and signed,

the Nazi Statute was in effect and persons had been prose-

cuted and convicted of extraterritorial crimes pursuant to

the Nazi Statute. See Attorney General v. Eichman, 56

Am. J. Int’l 805; Comment, ‘“Fedorenko v. United States:

War Crimes, the Defense of Duress and American National-

ity Law”, 82 Colum. L. Rev. 120, 168 (1982) (cases discussed

at note 156). The drafters could have excluded charges

under this statute from the Treaty—or even all charges

arising during the World War II period—had they wished

to do so. Article 21 of the extradition treaty between

Israel and Canada explicitly excludes “offenses committed

or convictions which have taken place” before the treaty

was signed. Extradition Agreement Between the Gov-

ernment of the State of Israel and the Government of

Canada, [1970] U.N.T.S. 270 (entered into force Decem-

16. See infra at 48-51 [A91-A94] (discussion of the political

offense exception).

A76

ber 19, 1969). The United States-Israel Treaty contains

no such limitation or exclusion.

Third, the Assistant Legal Adviser for the Law En-

forcement and Intelligence Section of the Department of

State in Government Exhibit 4 has declared that “[t]he

offense for which Mr. Demjanjuk’s extradition [is sought]

is covered by Article II of the Treaty...” Such a declara-

tion is not dispositive in judicial proceedings. Neverthe-

less, in resolving questions of treaty interpretation, state-

ments of the United States Department of State are

entitled to great weight. Factor, 290 U.S. at 295; Sayne

v. Shipley, 418 F.2d 679, 685 (Fifth Cir. 1969), cert. denied,

398 U.S. 903 (1970). In the instant case, the Court accepts

the Executive branch’s interpretation of Article II of the

Treaty, finding it well-founded and supported by the

weight of legal authority.

Fourth, United States courts have clearly established

that extradition treaties are to be liberally construed so

as to effect the apparent intention of the parties. Valen-

tine v. U.S. ex rel. Neidecker, 299 U.S. 5, 10 (1936); Factor,

290 U.S. at 293-94. Extradition treaties are intended to

secure the surrender of alleged criminals so that they

can he tried for the offenses charged. See 290 U.S. at

293; see also id. at 318 (Butler, J. dissenting). The sur-

render of such persons involves no impairment of any

legitimate public or private interest. Id. at 298. Rather

an obligation to extradite, in the interests of justice and

friendly international relations, should be honored when-

ever possible. Id.

Thus, even if the Treaty here could fairly be in-

terpreted to exclude mass murders, such aa interpreta-

tion, which would restrict Israel’s rights under the Treaty,

is disfavored. Accord Factor, 290 U.S. at 294. This Court’s

Se ee ee ee ee ee ae reer ee

a

—a Tes

A77

role is limited to certifying extraditability under the

Treaty. It should be left to the Secretary of State and

other members of the Executive Branch to ultimately

determine whether to extradite respondent since the con-

duct of foreign affairs and United States relations with

Israel are almost exclusively an executive function. Ac-

cord Shapiro, 478 F.2d at 906.

V.

PROBABLE CAUSE

The final function of the extradition court is to de-

termine whether there is “competent and adequate evi-

dence” or “probable cause’”’ to believe respondent com-

mitted the acts with which he is charged. 18 U.S.C. § 3184;

Fernandez v. Phillips, 268 U.S. 311, 312 (1925); Bingham

v. Bradley, 241 U.S. 511, 516-17 (1916); Shapiro v. Farran-

dina, 478 F.2d 894, 904-05, 913-14 (2d Cir.), cert. dismissed,

414 U.S. 884 (1973); Jimenez v. Aristequieta, 311 F.2d 547,

562 (5th Cir. 1962).

The weight and sufficiency of that evidence to estab-

lish probable cause is for the determination of the com-

mitting court. Gusikoff v. United States, 620 F.2d 459,

462 (5th Cir. 1980); Garcia-Guillern v. United States, 450

F.2d 1189, 1192 (5th Cir. 1971). Once again, the Govern-

ment and the requesting country are not required to show

actual guilt, that the person sought committed the crime.

The only requirement is that there be probable cause to

believe the fugitive is guilty. “The extradition court does

not inquire into the guilt or inmocence of the accused.

[It] looks only to see if there is evidence sufficient to

show reasonable ground to believe the accused guilty.”

Sayne v. Shipley, 418 F.2d 679, 685 (5th Cir. 1969).

A78

In making a finding that probable cause exists for

e.tradition, the Court is required to examine whether

probable cause exists for each specific charge which forms

the basis for extradition. Several courts have stated that

such a determination is necessary in order to clearly re-

solve issues of dual criminality and specialty which arise

in the interpretation of extradition treaties.’ Artukovic,

slip. op. at 1; Caplan v. Vokes, 649 F.2d 1336, 1343-44 (9th

Cir. 1981); Shapiro, 478 F.2d 894, 905-09 (2d Cir.), cert.

dismissed, 414 U.S. 884 (1973). The extradition record

must demonstrate “coherent legal connections between the

factual allegations and extraditable offenses.” Caplan, 649

F.2d at 1344.

This Court has already determined that respondent is

not extraditable for the offenses of “manslaughter and

malicious wounding; causing grievous bodily harm” since

those offenses are time-barred by the United States and

17. The principle of specialty limits prosecution in the re-

questing country to those extraditable offenses established by

the facts on which extradition has been granted by the asylum

[requested] country. The dual criminality principle makes an

offense non-extraditable unless it is criminal in both the re-

questing and the requested states’ jurisdictions. Caplan, 649

F.2d at 1343. The Court has determined as will be discussed

below that the common law principle of “dual criminality” is

inapplicable to the instant case since the U.S.-Israe] extradition

treaty governs. See infra at 48 [A90-A91].

Article XIII of the Treaty incorporates the principle of

specialty. It provides in relevant part, that

A person extradited under the present Convention shall not

be detained, tried or punished in the territory of the request-

ing Party for any offense other than that for which extradi-

tion has been granted nor be extradited by that Party to a

third State.

Pursuant to Article XIII, respondent may be extradited to Israel

only to stand trial for the offenses for which this Court has

certified that there is probable cause to indicate that respondent

committed the crimes. Accord Shapiro, 478 F.2d at 906-911;

see also Fiocconi v. Attorney General, 462 F.2d 475 (2d Cir. 1972);

United States v. Parovtian, 299 F.2d 486 (2d Cir. i962).

to

A79

the Ohio statute of limitations. Supra at A71. Since

there is no comparable statute of limitation for the crime of

“murder,” the Court has determined that Article V(3)’s

time bar does not prohibit respondent’s extradition for

murder. It is therefore necessary to establish the factual

and legal nexus between the acts respondent is alleged to

have committed and the crimes for which extradition is

granted. See Shapiro, 478 F.2d at 907. That “legal nexus”

constitutes the firiding of probable cause the extradition

court must make.

The nature of the Court’s inquiry into the identifica-

tion of respondent required a probable cause determination

which in many ways overlaps with the probable cause

finding required here. In other words, the Court has

already found that the eyewitness affidavits and supple-

mentary statements establish probable cause to believe

that respondent is the person accused and named in the

Arrest Warrant. These same affidavits and supplemen-

tary statements also are sufficient to place the respondent

at the site where the alleged crimes occurred, namely

the Treblinka camp in the years 1942-43. However, the

next step which must be taken is to identify those alleged

acts which respondent committed while at that site and

at that time and to determine whether those specific acts

constitute the extradictable offenseof murder.

The eyewitness testimony of Elijahu Rosenberg iden-

tifies respondent as a guard of the gas chamber at the

Treblinka camp, where Rosenberg was a prisoner in 1942

and 1943. March Tr. at 27. Rosenberg identified respon-

dent as one of two Ukranians who operated the gas cham-

bers. March Tr. at 28. Rosenberg states that he himself

saw respondent at the gas chambers “[e]very day, when-

ever there were transports.” Id. at 29. He stated that

A80

after the respondent and the other guard herded prisoners

into the gas chambers, “[t]hey returned to the room

where the motor was, and they activated the motor.”

Id. at 29.%8

It is known that the gas chambers at the various camps

throughout Europe during the Nazi period were created

for the express purpose of killing individuals as part

of the Nazi’s “Final Solution.” Treblinka’s principal pur-

pose was to kill all the Jews from the Warsaw ghetto. W.

Shirer, The Rise and Fall of the Third Reich 968, 975, 857

(1960). Although experimentation with killing by as-

phyxiation had begun as early as 1941 (mobile killing

vans), by 1942 at the Treblinka camp, the Nazis were us-

ing carbon monoxide gas from diesel engines, the fumes of

which were introduced into a sealed chamber containing

prisoners. Hydrogen cyanide was later chosen for use

at Auschwitz when SS Commander Rudolph Hoess de-

termined that Treblinka’s carbon monoxide method was

not “very efficient,” i.e. did not kill quickly enough.

See, e.g., United States v. Fedorenko, 455 F. Supp. 893,

901-02 n. 12 (S.D. Fla. 1978), rev’d, 597 F.2d 946 (5th

Cir. 1979), reh’g denied, 601 F.2d 1195, aff'd on other

grounds, 49 U.S. 490 (1981); R. Hilberg, The Destruction

of the European Jews 219, 441, 561-72 (1961); Shirer,

supra, at 967-69. Treblinka had 10 gas chambers which

18. Witness Rosenberg also testified that respondent beat and

“tortured” prisoners with a whip, a sword and a pipe. March

Tr. at 29. He does not specifically state the prisoners died from

such acts. Since the Court has ruled that respondent cannot be

extradited for ‘malicious wounding; grievous bodily harm,”

these acts of beating are not presented as factual elements in

the probable cause determination for the extraditable offense of

murder. Of course, such acts are properly within the scope

of consideration for the United States Executive Branch in

making its decision to extradite and the Israeli trial court in

considering the degree of the crime and severity of punishment,

if guilt is found, for the offense of murder.

A81

accommodated 200 people each. Shirev, supra, at 968. The

Court describes the operations of these monstrous “gas

chambers” in order to make it clear that if respondent ac-

tivated the motor for the gas chamber, as Rosenberg notes,

then there is probable cause to believe he committed mur-

der 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.

Witness Rosenberg has stated that dead bodies were

removed from the gas chambers approximately half-an-

hour to an hour after the motor was activated. March

Tr. at 28, 32. Rosenberg stated in his supplemental affi-

davit that he removed “with his own hands” the bodies

of his first cousin, Devora Shifran, and his neighbor,

Efraim Weinstein, from the gas chamber. March Tr. at 32.

Rosenberg did not specifically state that respondent was

operating the gas chamber at the time Shifran and Wein-

stein were gassed, but since only two Ukranians have been

identified as operating the chambers, it may be inferred

for the purpose of determining probable cause that re-

spondent was operating the chamber at the time of Shifran

and Weinstein’s death.

Witness Rosenberg in his supplemental statement made

under oath before a magistrate in Jerusalem also stated that

“fajt the Treblinka camp, many persons were also mur-

dered outside the gas chambers.” He could not recall

the names but he mentioned the case of his cousin David

Auslander. March Tr. at 31. Rosenberg states that re-

spondent took a sword and cut off the ear of Auslander

as Auslander was taking a corpse to the burial pit. Rosen-

berg said that Auslander did not return from the burial

pit. “By cutting off my cousin’s ear, Ivan, in effect, caused

A82

his death.” Id. Although witness Rosenberg did not see

Auslander actually die, Rosenberg stated that any prisoner

who appeared wounded would be shot to death when he

appeared at the edge of the pit. Government Exhibit 3,

Statement of Elijahu Rosenberg (item ER/2) at 1. There-

fore, the Court finds sufficient evidence to conclude that

probable cause exists for charging respondent with the

murder of David Auslander. Issues of medical and legal

causation are for the trial court to determine.

Witness Pinhas Epstein has also stated that he saw

the gas chambers at Treblinka in 1942-43 operated by two

Ukranians, one of whom was respondent. March Tr. at 34.

Epstein states that he also observed Ivan entering and

operating the engine room. March Tr. at 38. He identifies

six members of his family, including his parents and sib-

lings, who were killed in the gas chambers. March Tr, at

38. Witness Epstein in his supplemental affidavit sworn

to a magistrate in Jerusalem on February 5, 1984 described

seeing respondent beat prisoners with an iron pipe “to

split the heads of a number of prisoners . . . [with the

result that] the brains of these victims [were] spilling

out on the ground and that Ivan killed him [sic] with his

blows.” Epstein specifically identified Zigmond Eleibaum

as one of these victims killed by blows to the head. March

Tr. at 37.

Epstein also states that respondent hung three prison-

ers after torturing them, including Michelle and Moishe.

“IT wish to make it clear that Ivan took part in hanging

these three and that they were hung by a rope to a tree

until they died. I, myself, saw that these three were killed

in this way.” March Tr. at 37.

Witness Joseph Czarny, who was a prisoner at Treb-

linka from 1942 to 1943, in a statement at National Police

eee tee

vie Naik a ah wos.

A83

Headquarters in Tel Aviv on September 21, 1976, stated

that he saw respondent at Treblinka “convey[ing] people

into the gas chambers.” Czarny also states that he saw

respondent and “Lalka, Kurt Franz [shoot] people dead.”

March Tr. at 43. Czarny stated that he saw respondent

shoot a “carrier [of a] dead person” after respondent had

cut off the carrier’s ear. March Tr. at 46.

It is unnecessary to pass on every shred of evidence

detailing eyewitness accounts of acts allegedly committed

by respondent which can support a probable cause find-

ing. The quantity of evidence necessary for a determina-

tion of probable cause, as well as its weight and sufficiency,

is a matter for the extradition court’s discretion. Gusikoff,

620 F.2d at 462. It is enough in this case, after examin-

ing the statements of just three witnesses, to conclude

that there is sufficient evidence to find probable cause’

that respondent, while serving as a guard at the Treblinka

camp in 1942-1943, committed murders of: (i) uncounted

numbers of prisoners, including Shifran, Weinstein, and

members of Epstein’s family, who died of asphyxiation

in the gas chambers which respondent operated; (ii) David

Auslander, Elijahu Rosenberg’s cousin, who may have bled

to death or been shot after his ear was cut off by respon-

dent; (iii) Zigmond Eleibaum, who died from blows to

the head, as seen by Epstein; (iv) Michelle, Moishe and

a third prisoner who were hung by respondent, as ob-

served by Epstein; (v) the carrier of corpses who was shot

by respondent, as stated by Czarny. In sum, the Court

finds from a review of the evidence submitted that prob-

able cause exists to believe respondent committed multiple

acts of murder and that he may be extradicted to Israel

for those murders.

A84

VI.

DEFENSES

All of the prerequisites for extradition pursuant to the

Treaty and 18 U.S.C. §3184 have been met. Thus, the

only remaining issue before this Court is whether this case

falls within any of the provisions of the Treaty which

prohibit or limit extradition. Respondent has raised sev-

eral defenses to a finding of extraditability. As will be

shown below, these defenses lack merit.’®

19. In addition to the four defenses discussed in the text,

Demjanjuk claims:

(i) That his extradition is prohibited by the time-bar in-

cluded in Article VI(3). This argument is valid with respect

to some of the charges alleged and has been discussed above.

See supra at 30 [A71-A72].

(ii) That he is not a “fugitive” because he has never been

in the State of Israel nor did he flee from that jurisdiction. This

argument is rejected. Israel may assert jurisdiction over Dem-

janjuk, even if he is not an Israeli citizen. See Article IV;

Eain v. Wilkes, 641 F.2d 504 (Palestinian terrorist who was a

citizen of neither the United States nor Israel extradited to

Israel, pursuant to the Treaty). The propriety of Israel’s asser-

tion of jurisdiction in the instant case has been discussed in

detail above. Israeli jurisdiction does not rest on the physical

location of the alleged perpetrator. Furthermore, Demjanjuk’s

claim that he is not a fugitive and, thus, is non-extraditable lacks

merit. In re Ryan, 300 F. Supp. 270, 272 n.4; United States ex rel.

Eatessami v. Marasco, 275 F. Supp. 492, 496 (S.D. N.Y. 1967).

(iii) That his extradition is barred by Article VII of the

Treaty because the Nazi statute provides for the imposition of

the death penalty. Article VII provides that:

When the offense for which the extradition is requested

is punishable by death under the laws of the requesting

Party and the laws of the requested Party do not permit

such punishment for that offense, extradition may be re-

fused unless the requesting Party provides such assurances

as the requested Party considers sufficient that the death

penalty shall not be imposed, or, if imposed, shall not be

executed.

The United States and the State of Ohio allow the death penalty

to be imposed for murder of the type and magnitude alleged.

(Continued on following page)

siniciheassaels

A85

A. Israeli Statute is not Ex Post Facto

Respondent argues that Demjanjuk is not extraditable

under 18 U.S.C. §3184 because the Israeli statutes breaches

Israel’s obligations in international law and violates the

United States Constitution because the statute is ex post

facto. See Motion to Terminate at 7-11. Respondent’s

arguments and conclusion are erroneous.

Under international law, a law which renders an act

criminal when the act was not criminal at the time it was

committed may be a forbidden ex post facto law. This issue

need not be reached today because the Nazi and Nazi

Collaborators (Punishment) Law is not an ex post facto

law. The Israel statute does not declare unlawful what

had been lawful before; rather, it provides a new forum

in which to bring to trial persons for conduct previously

recognized as criminal. Defendants prosecuted under the

statute would have been subject to the criminal jurisdic-

tion of the state where the acts occurred, as well as

the jurisdiction of the Allies’ military tribunals and pos-

sibly German courts. See supra at 20-24 [A59-A64]; Order

of March 8, 1985 at 10-12.

Respondent is charged with offenses that were crim-

inal at the time they were carried out. At the time in

question, the murder of defenseless civilians during war

Footnote continued—

18 U.S.C. § 1111 (murder designated a capital offense); Ohio

Code § 2929.02; Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt

v. Florida, 428 U.S. 242 (1976). Thus, Article VII may not be

applicable. Even if Article VII is deemed to apply, making ex-

tradition discretionary, the decision to actually extradite rests

in the Executive branch. Article VII cannot be read as a bar

to certification of extradition. The Court merely notes at this

point that the Executive branch may want to take into account

the humanitarian concerns behind Article VII in deciding whether

to seek assurance from the State of Israel that Demjanjuk will

be fairly treated in all respects, before Demjanjuk is surrendered.

A86é

time was illegal under international law. The Hague

Conventions of 1899 and 1907 Respecting the Laws and

Customs of War on Land, 32 Stat. 1779, signed July 28,

1899, ratified (by the United States) April 9, 1902; 36

Stat. 2199, signed October 18, 1907, ratified (by the United

States) November 27, 1909, both expressly forbid the kill-

ing of defenseless persons, even when they are enemy

nationals, article 23(b), (c), and forbid “general penalties”

against populations, article 50. The Convention’s rules

were binding on parties to the Convention, including Ger-

many, and, by 1939, were recognized by all civilized na-

tions and regarded as declaratory of the laws and customs

of war.” The Nurnberg Trial, 6 F.R.D. at 131. See also

London Agreement supra at 22, “Moscow Declaration of

German Atrocities”, 9 Dep’t State Bull. 310 (November 1,

1943) (signed by Roosevelt, Churchill, Stalin); “Crimes

Against Civilian Populations in Occupied Countries”, 7

Dept’s State Bull. 709, 710 (1942) (statement by President

Roosevelt) (Allied declarations about the criminality un-

der law of acts being perpetrated on civilian population).

Furthermore, it is absurd to argue that operating gas cham-

bers, and torturing and killing unarmed prisoners were

not illegal acts under the laws and standards of every

civilized nation in 1942-43. Murder is malum in se. See

Fedorenko, 455 F.Supp. at 901-02 n. 12 (discussion of

Treblinka death camp’s operations).

The Israeli statute merely provides Israeli courts with

jurisdiction to try persons accused of certain crimes com-

mitted extraterritorially and establishes judicial procedures

and applicable penalties. See Calder v. Bull, 3 Dall. (U.S.)

20. Because the atrocities charged occurred during World

War II, the, Court need not reach the question of whether crimes

committed against civilian populations before World War II are

prohibited under international law. See 6 F.R.D. at 13.

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A87

386, 390-93 (1797) (discussion of ex post facto laws, as pro-

hibited in the United States Constitution); Cook v. United

States, 138 U.S. 157, 183 (1891). Similarly, the Nurem-

berg International Military Tribunal provided a new forum

in which to prosecute persons accused of war crimes com-

mitted during World War II pursuant to an agreement

of the wartime Allies, see The Nurnberg Trial, 6 F.R.D.

69. That tribunal consistently rejected defendants’ claims

that they were being tried under ex post facto laws. Id.

See also United States v. Waldeck; United States v. Otto;

United States v. Brust. The statute is not retroactive be-

cause it is jurisdictional and does not create a new crime.

Thus, Israel has not violated any prohibition against the

ex post facto application of criminal laws which may exist

in international law.”

21. Respondent’s argument that the Israeli statute violates

the United States Constitution’s prohibition against ex post facto

laws is misplaced. This Court does not have jurisdiction to de-

termine whether Israeli criminal procedure extends to respon-

dent all of the constitutional rights of a defendant in an American

court. Due process rights cannot be extended extraterritorially.

Neely v. Henkel, 180 U.S. 109 (1901); Kamrin v. United States,

725 F.2d 1225, 1228 (9th Cir. 1984), cert. denied, 105 S. Ct. 85

(1984); In the Matter of the Extradition of Andrija Artukovic,

CV84-8743 (C.D. Cal., March 5, 1985). This Court is “bound by

the existence of an extradition treaty to assume that the trial

will be fair.’ Glucksman v. Henkel, 221 U.S. 508, 512 (1911)

(J. Holmes). As the Second Circuit held in Rosado v. Civiletti,

621 F.2d 1179, 1193 (2d Cir. 1950),

Even where the treaty fails to secure to those who are ex-

tradited to another country the same constitutional safeguards

they would enjoy in an American criminal trial, it does

not run afoul of the Constitution.

See also Holmes v. Laird, 459 F.2d 1211 (D.C.D.C. 1972), cert.

denied, 409 U.S. 869 (1972). If there is any discretion not to

extradite because of dangers of an unfair trial or persecution,

such discretion rests in the Executive Branch. Restatement of the

Foreign Relations Law of the United States (Revised), Tentative

Draft No. 5 (1984) §386 Comment g.

The Court notes, without deciding, that in all likelihood,

the Israeli statute would not be a constitutionally prohibited

ex post facto law. Accord Calder v. Bull, 3 Dall. (U.S.) 386, 390

(1797); Cook v. United States, 138 U.S. 157, 183 (1891).

A88

Furthermore, contrary to Demjanjuk’s assertions,

Motion to Terminate at 9, the Israeli statute does not

breach Israel’s international obligations because the acts

alleged preceded the independence of the State of Israel.

The criminal law defining and prohibiting murder in the

State of Israel today incorporates the 1936 Criminal Code

which was in effect in Palestine, pursuant to the authority

of the United Kingdom, as Mandatory Power for Palestine

under the League of Nations. See Rosenne, “The Effect

of Change of Sovereignty on Municipal Law,” [1950] Brit.

Y.B. Int'l L. 267, 284-85. Thus, Israeli courts have asserted

the right to try persons accused of committing crimes

before Israel’s independence, as courts of a successor state.

Accord Attorney General v. Eichman, 56 Am. J. Intl. at

833. This is consistent with United States law, which

provides that laws “designed to secure good order and

peace in the community, . . . which are strictly of a

municipal character” remain in force after a change in

government, until the new government acts to alter or

repeal the legislation. Chicago, Rock Island & Pacific Ry.

v. McGlinn, 114 U.S. 542, 546 (1885). Because the 1936

Criminal Code prohibited murder and because the Man-

datory Power could have enacted a law providing for

the prosecution of extraterritorial war crimes, Israel, as

the successor state, can try persons for murders committed

during the time of the British Mandate. Thus, Israel’s

statute is not jurisdictionally defective because it was

promulgated after Israel became a State.

There is nothing in the Treaty to indicate that it is

not applicable to crimes committed before Israeli state-

hood. An extradition treaty is to be given retroactive

effect, absent an explicit reference in the treaty to the

contrary. Gallina v. Fraser, 177 F. Supp. 856, 864 (D.

Conn. 1959), aff'd 278 F.2d 77 (2d Cir. 1960), cert. denied

—

A89

364 U.S. 851 (1960), reh’g denied, 364 U.S. 906 (1960).

The Treaty does not contain any prohibition against Is-

rael’s assertion of jurisdiction over crimes committed

during World War II, or crimes committed prior to the

time Israel became a state. There is no evidence that

the drafters intended to exclude such crimes and no legis-

lative history to indicate that the United States Senate

intended the Treaty to be so interpreted. Senate Report

of Proceedings, Senate Comm. on Foreign Relations, Con-

vention with Israel at 51-59 (September 25, 1963). Again,

murder is malum in se. It is illogical to assume that an

alleged criminal is not extraditable and, thus, will not

be tried for a crime as serious as murder because the

crime was committed before the requesting state obtained

statehood. Thus, pursuant to the Treaty, the United States

is obligated to extradite persons for crimes committed

prior to the time Israel became an independent state.

Israel’s lack of statehood during World War II is not a

defense to extradition.

B. Treaty’s “Double Jeopardy” Provision Does Not Bar

Extradition.

Article VI of the Treaty provides that extradition

shall not be granted:

1. When the person whose surrender is sought

is being proceeded against, or has been tried and dis-

charged or punished, in the territory of the requested

Party for the offense for which his extradition is re-

quested.

Demjanjuk argues that this provision bars his extradition

because the United States government currently is seeking

his deportation, based on the same alleged acts and evi-

dence relied on in the Extradition Request. Defendant’s

AS0

Supplemental Outline Regarding Issues (February 4, 1984)

at 10.

This Treaty provision, however, applies only to crim-

inal proceedings in the requested couniry. Sinduna v.

Grant, 619 F.2d 167 (2d Cir. 1980) (test for treaty “double

jeopardy” protection is “whether the same conduct or

transaction underlies the criminal charges in both trans-

actions”) (emphasis added); Stowe v. Devoy, 588 F.2d

336, 340 (2d Cir. 1978) (only double jeopardy problem

if the requested person has been or is being tried and

subject to punishment for the offense in question), cert.

denied, 442 U.S. 931 (1979). Neither denaturalization

nor deportation proceedings are criminal prosecutions.

Schneiderman v. United States, 320 U.S. 118, 160 (1943)

(“denaturalization suit is not a criminal proceeding”),

reh’g denied, 320 U.S. 807 (1943); Fedorenko v. United

States, 449 U.S. 490, 516 (1981) (“a denaturalization action

is a suit in equity”); Fong Yue Ting v. United States, 149

U.S. 698, 730 (1893) (“deportation is not a punishment

for crime”); Oliver v. I.N.S., 517 F.2d 426, 428 (2d Cir.

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